Mere association or familial relationship with an accused, without concrete evidence of complicity in the alleged crimes, is no ground to deny security clearance for registration as an Overseas Citizen of India (OCI), the Delhi High Court has said.
The court’s ruling came while dealing with a petition by a Russian national and her minor son seeking OCI status on account of her marriage in 2019 with a now deceased Indian national.
The request of the petitioners for registration as OCI was “closed” by the authorities on the ground that the deceased husband was subject to a Look-out Circular (LOC) by the Enforcement Directorate (ED) and she allegedly had significant association with her late husband’s business activities which were under scrutiny.
Justice Sanjeev Narula acknowledged the executive’s prerogative in matters of national security but asserted that such discretion should not be exercised arbitrarily and “claims of national security must be backed by credible evidence and a transparent process, especially given the severe personal and legal implications for the individuals involved”.
“Mere association or familial relationship with an accused, without concrete evidence of direct involvement or complicity in the alleged crimes, 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 (equality before law) of the Constitution,” said the judge in the order passed on July 22.
“The ongoing investigation into her late husband’s activities and her prior employment at his company ‘ does not per se disqualify Petitioner No. 1 (the woman) from OCI eligibility. There is no direct allegation or evidence of wrongdoing by Petitioner No. 1 herself that would merit such denial under the Citizenship Act,” the court said.
With respect to the rejection of the OCI application of the minor son, the court noted that there was no requirement of prior security clearance under the law for him and directed the authorities to consider the OCI applications of mother-son duo afresh and take a decision in light of its observations within eight weeks.
The court also asked the authorities to consider afresh the request of the petitioner woman for extension of her visa.
The court said although an LOC was issued against the petitioner, no criminal case was registered directly against her and it seems to be a “precautionary measure” by the ED to ensure her availability in India for investigative purposes.
“Petitioner No. 1 has maintained her presence in India and has shown no intent to evade the legal proceedings.. (The) situation is particularly challenging because it places Petitioner No. 1 in a precarious position where she is unable to leave the country due to the LOC, yet simultaneously, she faces the risk of overstaying her visa due to the non-extension or renewal by the authorities,” the court stated.
“Accordingly, the decisions dated 27th July, 2022 and 29th August, 2022 as well as the corresponding speaking orders dated 12th January, 2023 are hereby quashed. The Respondents are directed to consider the OCI application of Petitioner No. 1 and 2 afresh, in order to take a decision thereon, in light of the observations made by this Court hereinabove, within a period of eight weeks from today,” it ordered.
