The Status of pio – with special reference to enjoyment of rights

Introduction:

Who is a “PIO” or “Persons of Indian Origin”?

Person of Indian Origin has been defined in section 2(c) of Foreign Exchange Management (acquisition and Transfer of immovable property in India) regulations 2000.

A PIO means an individual (not being a citizen of Pakistan or Bangladesh or Sri Lanka or Afghanistan or China or Iran or Nepal or Bhutan), who

(i)                 at any time, held Indian passport; or

(ii)               who or either of whose father or grandfather was a citizen of India by virtue of the constitution of India or the Citizenship Act,1955 (57 of 1955)

Indian Scenario:

A Person of Indian Origin (PIO) is a person living outside of India and without Indian citizenship, but of Indian origin up to four generations removed. It is available to persons of Indian origin anywhere in the world as long as they have never been citizens of Pakistan or of Bangladesh (a reservation excluding Muslims who joined Pakistan during or after the 1947 partition). This unusual type of citizenship by descent is an intermediate form of citizenship in that it does not grant the full portfolio of rights enjoyed by Indian citizens.

The Citizenship (Amendment) Act 2003 and Citizenship (Amendment) Ordinance 2005  make provision for an even newer form of Indian nationality, the holders of which are to be known as Overseas Citizens of India (OCI). Overseas citizenship is not substantially different from PIO rights.

Holding either PIO or OCI status does, however, facilitate access to full Indian citizenship. An OCI who has been registered for five years, for instance, need be resident for only one year in India before becoming a full citizen.

CITIZENSHIP:

The Indian citizenship and nationality law and the Constitution of India provides single citizenship for the entire country. The provisions relating to citizenship at the commencement of the Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India.

Relevant Indian legislation is the Citizenship Act 1955, which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005. The Citizenship (Amendment) Act 2003 received the assent of the President of India on 7 January 2004 and came into force on 3 December 2004. The Citizenship (Amendment) Ordinance 2005 was promulgated by the President of India and came into force on 28 June 2005.

RELATED LAWS:

 The provisions relating to citizenship at the commencement of the Constitution are contained in Articles 5 to 11 in Part II of the Constitution of India

Art.5: Citizenship at the commencement of the Constitution.—At the commencement of this Constitution, every person who has his domicile in the territory of India and—

(a) who was born in the territory of India; or

(b) either of whose parents was born in the territory of India; or

(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, 

shall be a citizen of India.

Art.8: Rights of citizenship of certain persons of Indian origin residing outside India.— Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India.

Art.9: Persons voluntarily acquiring citizenship of a foreign State not to be citizens.— No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.

Art.10: Continuance of the rights of citizenship.—Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

Art.11: Parliament to regulate the right of citizenship by law.—Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship

Clearly, the objective of the Constitution-makers - as evident from the August 1949 debates on the issue of citizenship in the Constituent Assembly - was not exclusivist. They were concerned with prescribing general qualifications for citizenship and left it to Parliament to decide the position of persons who are not born Indians. They agreed that there would be the law of naturalisation, which would make detailed provisions relating to persons who are not born of Indian parents.

It is to the credit of the Indian Constitution that it does not distinguish the rights of citizens on the basis of how they acquired citizenship - by birth, descent, registration, naturalization or incorporation of territory. It does not create different classes or categories of citizens. Vitally, unlike its United States counterpart, the Indian Constitution does not restrict eligibility to the top constitutional offices of President and Vice-President to natural-born citizens. There is also no question of placing any such restriction on eligibility to become a Minister or Prime Minister or Chief Minister. It was certainly a conscious decision of the Constitution-makers, as any such distinction between natural-born and naturalised citizens would militate against equality before the law ensured by the Constitution.

Overseas citizenship of India:

There is a form of Indian nationality, the holders of which are known as Overseas Citizens of India. The Constitution of India forbids dual citizenship or dual nationality, except for minors where the second nationality was involuntarily acquired.

 Indian authorities have interpreted the law to mean a person cannot have a second country's passport simultaneously with an Indian one — even in the case of a child who is claimed by another country as a citizen of that country, and who may be required by the laws of the other country to use one of its passports for foreign travel (such as a child born in the United States to Indian parents), and the Indian courts have given the executive branch wide discretion over this matter.

Therefore, Overseas Citizenship of India is not a full citizenship of India and thus, does not amount to dual citizenship or dual nationality. Moreover, the OCI card is not a substitute for an Indian visa and therefore, the passport which displays the lifetime visa must be carried by OCI holders while traveling to India. There is no plan to issue Indian passports to Overseas Citizens of India, although the registration certificate will be in the form of a passport-like booklet.

The Central Indian Government, on application, may register any person as an Overseas Citizen of India if that Person is of Indian Origin and is from a country which allows dual citizenship in some form or the other. Broadly speaking, a "Person of Indian Origin" is a citizen of another country who:

-was a citizen of India on 26 January 1950 or at any time thereafter; or

-belonged to a territory that became part of India after the 15 August 1947; or

-is the child or grandchild of a person described above; and

-has never been a citizen of Pakistan or Bangladesh.

Note that children of Indian parents do not automatically fulfil these requirements, and are therefore not automatically eligible for OCI.

DUAL CITIZENSHIP FOR PERSONS OF INDIAN ORIGIN:

On January 8, 2002, Indian Prime Minister Atal Bihari Vajpayee announced that the Indian government has resolved the issue of dual citizenship for Indian living overseas.

Under present Indian law, if an Indian citizen takes up the citizenship of another country; his or her Indian citizenship is automatically voided.

A high-level committee on the Indian diaspora, headed by noted Indian jurist L.M. Singhvi, examined the long-standing demand of Indians settled abroad to be given dual citizenship. Vajpayee reacted favorably to the committee’s suggestion that dual citizenship can be extended right away to those settled in the US, UK, Canada, European mainland, Australia, New Zealand and Singapore. These countries either permit or tolerate dual citizenship. Indians settled in Sri Lanka, Mauritius and Malaysia may not be entitled to dual citizenship and would have to opt for “person of Indian origin” certificates.

The US government accepts but does not wholly approve of dual citizenship. Although one of the grounds for losing US citizenship is to become a citizen of a foreign country, this provision in the Immigration and Nationality Act will only be applicable if it is done with the intention to relinquish US citizenship. In rare instances, one could lose US citizenship if the other country requires the taking of an oath involving the renunciation of US citizenship. The US Supreme Court has held that a person could not be deprived of US citizenship without clear evidence that the person intended through the voluntary act of taking another country’s citizenship to relinquish US citizenship. Vance vs. Terrazas, 44 US 252 (1980) ^[1]

[1] Vance vs. Terrazas, 44 US 252 (1980)

This is not likely to happen in the case of Indian Americans taking up Indian citizenship. Vajpayee publicly stated: “We are in favor of dual citizenship but not dual loyalty.” Vajpayee also said that Indians settled abroad should also have loyalty to the countries where they had settled and should fulfil their responsibilities as citizens of those countries. This implies that people who opt to take up dual citizenship cannot contest in Indian elections and neither can they vote in them. Based on these indicators, it is unlikely that the opting of Indian citizenship would jeopardize an Indian American’s citizenship in the United States.

It is also unlikely that dual citizenship would make a huge difference in terms of the investment that non-resident Indians (NRIs) are likely to make in India. An NRI can either be an Indian citizen who has taken up residency in a foreign country (such as a green card holder) or citizen of a foreign country who was either previously been an Indian citizen or who has Indian ancestry.

NRIs do have certain benefits with respect to investing in India. There are also limits as to how much an NRI could repatriate his or her investment to the foreign country.

It remains to be seen whether a “dual citizen NRI” would be treated more favorably than a regular NRI. This may not be the case, as an NRI currently could also hold an Indian passport. It would make little sense to confer greater economic advantage to a “dual citizen” NRI over a regular NRI.

It appears that dual citizenship has been largely established to cater to the sentiments of people of Indian origin living in foreign countries. While it does not confer the right to vote or contest elections, it would give people the assurance that they could visit or live in India without any restrictions. It may also allow people to take up jobs in India that would otherwise be prohibited for non-Indian citizens. According to reports, dual citizenship could be introduced merely by amending the Citizenship Act 1955 instead of amending the Indian Constitution.

Persons of Indian origin (PIO) card:

This is issued to any person currently holding a non-Indian passport, who can prove their Indian origin up to three generations before. The same holds for spouses of Indian citizen or persons of Indian origin. Citizens of Pakistan, Bangladesh, and other countries as may be specified by the central government are not eligible for grant of Persons of Indian Origin Card.

A PIO Card is generally valid for a period of fifteen years from the date of issue.

It gives the holder the following benefits:

-exemption from registration at a Foreigners' Regional Registration Office (FRRO) for periods of stay less than 180 days,

-enjoy parity with non-resident Indians in economic, financial and educational fields,

acquire, hold, transfer, or dispose of immovable properties in India, except for agricultural properties,

-open rupee bank accounts, lend in rupees to Indian residents, and make investments in India etc.,

-being eligible for various housing schemes under the Life Insurance Corporation of India (LIC) or the central or state governments,

-their children can obtain admission in educational institutions in India in the general category quota for non-resident Indians.

Possession of a PIO card will not entitle the holder to:

-being eligible for the exercise of any political rights

-visit restricted or protected areas without permission

-undertake mountaineering, research, and missionary work without permission.

PIO Card : How to obtain PIO Card?

India passed a law to grant dual citizenship to the people of Indian origin (PIO) on December 22, 2003. The law received the President's approval on January 7, 2004, and became operational from 2nd December 2005. The law will help grant dual citizenship to Persons of Indian Origin (PIOs) belonging to, or having citizenship of other countries subject to certain conditions. The grant of dual citizenship was intended to remove for those who have taken foreign passports, the obstacle in travel to and from India, permit investment in business ventures and foster a greater sense of belonging. 

The Overseas citizenship of India (OCI) commonly known as dual citizenship is granted to persons who migrated from India and acquired citizenship of a foreign country other than Pakistan and Bangladesh. They are eligible for grant of OCI as long as their home countries allow dual citizenship in some form or the other under their local laws. However persons registered as OCI shall not have any voting rights and rights for public employment.

Every registered OCI will be issued a registration certificate which is printed like an Indian passport in different colour and an OCI visa sticker will be pasted in the person’s foreign passport. These two documents will have the photograph of the individual and all necessary security features.

Eligibility:
A foreign national, who was eligible to become citizen of India on 26.01.1950 or was a citizen of India on or at anytime after 26.01.1950 or belonged to a territory that became part of India after 15.08.1947 such as Sikkim, Pondicherry, Dadra and Nagar Haveli, Goa, Daman and Diu and his/her children and grand children, provided his/her country of citizenship allows dual citizenship in some form or the other under the local laws, is eligible for registration as Overseas Citizen of India (OCI).

Minor children of such persons are also eligible for OCI. However, if the applicant had ever been a citizen of Pakistan or Bangladesh, he/she will not be eligible for OCI. A person registered as OCI is eligible to apply for grant of Indian citizenship under section 5(1)(g) of the Citizenship Act, 1955 if he/she is registered as OCI for five years and has been residing in India for one year out of the five years before making the application.

Benefits:
Once person are accepted and registered as an Indian citizen, he will receive the following benefits:

-A registration certificate to prove his dual status, 

-Overseas citizen passport in addition to the passport of the country of which he is already a citizen, 

-he will no longer need to apply for a visa to travel to India. He has rights for multiple entries and a multipurpose lifelong visa to visit India. However, he  must carry and present both passports at the time of travel; 

-he will not have to go through any registration formalities for staying in the country for any length of time,

-he will no longer have to provide separate documentation for admission to any college/institution or for employment, 

-he will be treated the same as a non-resident Indian with respect to the facilities available to the latter in the economic, financial and educational field, except in the acquisition of agricultural or plantation properties,