Striking A Balance Between Individual Rights & National Security Is Essential: Delhi HC Provides Relief To OCI Cardholder Accused Of “Anti-India Activities”

The Delhi High Court has provided some relief to an OCI (Overseas Citizen of India) cardholder who has been accused of being involved in “anti-India activities”.

The accused Khalid Jahangir Qazi, a USA national holding the status of OCI, sought entry to India via Writ Petitions before the Court.

A Single Bench of Justice Sanjeev Narula remarked, “While the setting aside of these orders technically allows the Petitioner to re-enter the country, the underlying concerns relating to national security and public interest remain significant. Moreover, there can be no doubt that authority to grant or deny entry into the country is a sovereign function and prerogative of the state. … striking a balance between individual rights and national security is essential.”

The Bench observed that the cancellation order cannot withstand judicial scrutiny and is liable to be set aside.

Senior Advocate Parag P. Tripathi appeared for the Petitioner while Additional Solicitor General (ASG) Chetan Sharma appeared for the Respondents.

Factual Background -

The Petitioner, a senior citizen aged around 80 years was residing in New York, USA and working as a Clinical Professor of Medicine. He registered as an OCI in 2018 and regularly visited Srinagar, Kashmir to meet his family comprising two elder sisters and one younger sister who were all Indian citizens. He claimed that his sisters were suffering from various medical conditions and hence, rely on him for medical advice and care. To support his family, he travelled regularly to India from 2017 to 2019 and again between 2021 and 2022. Following a hiatus in 2022 due to health issues, he recovered and planned a visit to India to reconnect with his family in Srinagar and address family matters that remained unresolved after the passing of his younger brother in January 2023.

In June 2022, a show-cause notice was issued to the Petitioner, alleging his involvement in “anti-India activities” and calling upon him to furnish an explanation as to why his OCI card ought not be cancelled. He challenged the legality of two restrictive measures imposed upon him before the High Court – Order issued by the Consulate General of India, New York cancelling his OCI card under the Citizenship Act, 1955 and a subsequent blacklisting Order issued by the Ministry of Home Affairs under the Foreigners Act, 1946, restraining his entry into India.

The High Court in the above regard, noted, “… notice vaguely asserts that the Petitioner’s actions are “anti-India” and adverse to “the sovereignty and integrity of India,” without any specific details or evidence supporting these claims. Such broad allegations lack the specificity necessary to afford the Petitioner an adequate opportunity to be heard, thus, contravening the procedural safeguards explicitly embedded in the proviso to Section 7D of the Citizenship Act. The provision requires the government to be “satisfied” of the need for cancellation and to convey these reasons clearly so that the cardholder can respond appropriately.”

The Court added that, without specific facts and grounds, the Petitioner was denied an adequate opportunity to respond substantively to the reasons underlying the proposed cancellation.

“This lack of clarity deprived the Petitioner of a fair chance to present an effective defence, a crucial component of procedural fairness and principles of nature justice. Consequently, this Court finds that the cancellation order cannot withstand judicial scrutiny and is liable to be set aside. To remedy this deficiency, the Respondents must issue a fresh show cause notice that clearly specifies the grounds for the proposed cancellation, allowing the Petitioner an informed opportunity to respond”, it said.

The Court further emphasised that an order of cancellation under Section 7D must be procedurally fair, meeting the standards of transparency and reasonableness.

“In this case, the vague nature of the allegations and absence of specific grounds in the show cause notice fall short of this threshold, rendering it violative of the statute and the principles of natural justice”, it added.

The Court explained that unlike the Citizenship Act, Section 3 of the Foreigners Act does not expressly require a hearing or procedural safeguards similar to those mandated under the proviso to Section 7D of the Citizenship Act.

“… if the Respondents were permitted to invoke Section 3 to blacklist an OCI cardholder on grounds identical to those for OCI cancellation under Section 7D, without adhering to the procedural safeguards mandated by the Citizenship Act, it would create a serious conflict within the legal framework. If this safeguard is not read in to the statute, the government could arbitrarily apply dual remedies, targeting the same actions on identical grounds through both a blacklisting order under Section 3 of the Foreigners Act and a cancellation order under Section 7D(e) of the Citizenship Act”, it also said.

The Court clarified that the Court cannot overlook that a mere affidavit, lacking the force of a formal order, was relied upon to deny fundamental privileges under OCI status and to proceed on such tenuous grounds, without proper procedural fairness, would set a concerning precedent, one that risks eroding the unique rights granted under the Citizenship Act.

“Since the statutory framework itself provides a basis for resolving the matter, further scrutiny of alleged violation of constitutional rights is found unnecessary. Accordingly, the Court refrains from examining the constitutional claims raised by the Petitioner or expressing any opinion on them at this stage”, it said.

The Court, therefore, directed that before allowing the Petitioner to enter India, the Respondents shall issue a fresh notice that clearly specifies the grounds for any intended restrictions or cancellations.

Accordingly, the High Court disposed of the Petitions and issued necessary directions.

Cause Title- Khalid Jahangir Qazi Through His Power Of Attorney Holder Farida Siddiqi v. Union Of India Through Secretary & Ors. (Neutral Citation: 2024:DHC:8754)

Appearance:

Petitioner: Senior Advocate Parag P. Tripathi, Advocates Apoorv P. Tripathi, Anjali Kaushik, Arushi Mishra, and Apaan Mittal.

Respondents: ASG Chetan Sharma, CGSC Apoorv Kurup, SPC Farman Ali, Advocates Amit Gupta, Saurabh Tripathi, Vinay Yadav, Usha Jamwal, Shubham Sharma, Arnav Mittal, and Vikramaditya Singh.

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