Summary
The Supreme Court held that the High Court had no legal basis to dispense with the physical or virtual presence of the Indian spouse at the interview on an OCI card application by a foreign spouse under Section 7A(1)(d) of the Citizenship Act, 1955. Section 7A(1) allows prescribed conditions and procedures, and the checklist and Visa Manual requiring the interview were never challenged. The Central Government may still consider the estranged applicant's case under Section 7A(3).
Issues
- Whether the presence of the Indian citizen spouse is mandatory for processing an application for an Overseas Citizen of India card made by a foreign spouse under Section 7A(1)(d) of the Citizenship Act, 1955.
- Whether the checklist and Visa Manual requiring a personal interview of both spouses are valid supplementary procedures although the Act does not itself mandate an interview.
- Whether the High Court could dispense with that requirement, or call it arbitrary, when neither the Act, the checklist nor the Visa Manual was challenged.
Provisions considered
- Section 7A(1)(d) and proviso, Citizenship Act, 1955Registration of a foreign spouse of an Indian citizen as an OCI cardholder is 'subject to such conditions, restrictions and manner as may be prescribed', requires a registered marriage subsisting for at least two years and prior security clearance; the Court held this permits supplementary procedures such as the interview in the Visa Manual and checklist. (¶¶ 7, 8, 9, 15)
- Section 7D(f), Citizenship Act, 1955Noted as the power to cancel OCI registration obtained on spouse basis where the marriage is dissolved or the cardholder's spouse remarries during its subsistence, showing why genuineness and continuance of the marriage matter. (¶ 10)
- Section 7A(3), Citizenship Act, 1955Permits the Central Government to register a person as an OCI cardholder on recording special circumstances; the Court left it open to the Government to consider whether the respondent's estrangement amounts to such circumstances, without expressing a view. (¶¶ 19, 20)
- Chapter 21 (personal interview for spouse-basis OCI applicants); checklist clause requiring the couple to be present, Ministry of Home Affairs Visa Manual and OCI verification checklistThe checklist requires the couple to be present on submission, and the Visa Manual provides for a mandatory personal interview at which random questions may be put to the applicant and spouse separately; the Court read these as making the spouse's physical or virtual presence mandatory. (¶¶ 11, 12, 13, 14)
Held
- Since Section 7A(1) of the Citizenship Act makes OCI registration subject to prescribed conditions, restrictions and manner, the Act allows supplementary procedures such as the interview prescribed in the Visa Manual and checklist; the argument that these instruments cannot impose a condition not found in Section 7A(1)(d) was rejected. (¶ 15)
- Read with the checklist, the Visa Manual's provision for separate questioning of the foreign applicant and the spouse makes the presence of the spouse, physically or by video, mandatory for effective consideration of a spouse-basis OCI application. (¶¶ 12, 13, 14)
- Dispensing with the spouse's presence would depart from the notified procedure and shift the entire burden of verification to the authorities, whereas it is for the applicant to satisfy them, in the prescribed manner, that the application is genuine. (¶ 16)
- In the absence of any challenge to the Act, the Visa Manual, the administrative instructions or the checklist, the High Court erred in dispensing with the spouse's presence on the footing that genuineness could be verified in other ways, and the Division Bench was unjustified in calling the requirement arbitrary; the direction had no legal basis. (¶¶ 15, 16, 17, 18)
- The judgment does not prevent the Central Government from considering whether special circumstances under Section 7A(3) exist in the case of an applicant estranged from her Indian spouse; that discretion rests entirely with the Government. (¶¶ 19, 20)
Result
Appeals allowed; judgments of the Single Judge and Division Bench of the Delhi High Court set aside; Central Government left free to consider the respondent's case under Section 7A(3) of the Citizenship Act, 1955.