IN THE HIGH COURT OF DELHI AT NEW DELHI W.P. (C) 4148/2010 & CMs 8243, 8276/2010 Reserved on: 21st July 2010 Decision on: 3 rct August 2010 KARM KUMAR ..... Petitioner Through: Ms. Roma Bhagat, Advocate · versus UNION OF INDIA & ORS ..... Respondents Through: Mr. A.S. Chandhiok, ASG with Mr. Jatan Singh, Me Ashok Singh, Ms. Vibha Dhawan, Mr. Rajshekhar Rao and Mr. Karan Lahiri, Advocates for R-1 to 4!UoJ. Mr. Hari Shankar K. with Mr. Vikas Singh Jangra, Advocate for R-5/SRFI. W.P.(C) 4263/2010 & CM 8454/2010 ROBERT BLANCHETTE ..... Petitioner Through: Ms. Roma Bhagat, Advocate versus UNION OF INDIA & ORS : .... Respondents Through: Mr. A.S. Chandhiok, ASG with Mr. Jatan Singh, Mr. Ashok Singh, Ms. Vibha Dhawan, Mr. Rajshekhar Rao and Mr. Karan Lahiri, Advocates for Uol. Mr. Hari Shankar K. with Mr. Vikas Singh Jangra, Advocate for SRFI. CORAM: JUSTICE S. MURALIDHAR 1. Whether Reporters of local papers may be allowed to see the judgment? ~ 2. To be referred to the Reporter or not?/ 3. Whether the judgment should be reported in Digest? V The Issue JUDGMENT 03.08.2010 1. Can an Overseas Citizen of India ('OCI') or a Persori of Indian WP(Cj Nos.4148 & 4263/2010 Page I of 31 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified Origin ('PIO') claim a right to represent India in an international sporting event? This is the question that arises for consideration in these~ two petitions, which also involve inter alia the interpretation of '/ Sections 7 A(l) and 7B of the Citizenship Act, 1955 ('the Act'). The Petitioners challenge the policy of the Government of India in the . Ministry of Youth. Affairs and Sports (MY AS), Respondent No.3, as evidenced by its impugned communication dated 26th December 200~ followed by the clarification dated 1 ih March 2009 to the effect that only Indian paSsport holders will be permitted to represent India in international sports events. Facts in W.P. (C) No. 4148 of2010 by Karm Kumar 2. Karm Kumar, the petitioner in Writ Petition (C) No. 4148 of2010, is a citizen of the United Kingdom (U.K.) and holds a U.K. passport. He is an OCI. He is aggrieved by the decision of the Squash Rackets Federation of India ('SRFT), Respondent No. 5, consistent with the policy announcement dated 26th December 2008 of the Government of India not to permit him to represent India in the international squash tournaments. 3. Karm Kumar was born in India. He is stated to have gone along with his parents to the United Kingdom when he was two to three years old. Both his parents and Karm Kumar are citizens of U.K. Like his parents, Karm Kumar is also a U.K. passport holder. His U.K. passport was last renewed on 14th February 2007. WP(C) Nos.4148 & 426312010 Page 2 of31 4. It is stated that Karm Kumar represented India in the 1st Asian Junior ( Championship for Squash in Singapore in the under-15 Category and he cJ secured the 9 1h position in Asia. His name was included as a 'Special/ Project Player' by the SRFI in their 2006-10 Long-Term Development Plan (L TDP) on 24th September 2006. It is stated that he played for the Ddhi Inter-state men's team in 2007. It is stated that till then the SRFI had held out that foreign nationals who were PIOs and who had not turned 16 could not play in the national tournaments although they could play for India in regional and international events. On 31st March 2008, a letter was issued by the SRFI inviting players to attend the selection camp for the forthcoming Asian as well as Junior World championships. It was stated that only those who had valid Indian passports would be considered for the camp. 5. Karm Kumar challenged the above communication by filing Writ Petition (C) No. 3049 of 2008 in this Court. The first prayer in the said petition was for quashing the rule made by the SRFI that "foreign nationals cannot participate in the National Squash Championship even if they are Persons of Indian Origin and have a PIO or OCI status." The other prayer was for a direction to the Respondent MYAS "to have a uniform sports policy for the country whereby rules of eligibility so far as they are based on nationality are the same for everyone" and for a uniform policy on eligibility of PIO/OCI status holders to play for India in regional and international tournaments. WP(C) Nos.4148 & 4263/2010 Page 3 of31 6. By judgment dated 1" October 2008 in W.P.(C) No.3049 of 2008, a [! learned Single Judge of this Court allowed the first prayer as regards / participation of OCis in national tournaments. A direction was issued to the Government of India to frame a uniform policy in the matter of permitting OCis to represent India in international sporting events. The relevant portion of the judgment of the Single Judge of this Court read as under:. "It is further noteworthy that learned counsel from both sides have conceded that the absence of a uniform policy qua eligibility of foreign nationals of Indian origin to represent India in national and International sports is the fountainhead of the disputes between the parties. The question, thus, arises as to whether, individual Sports Federations, in the absence of any uniform sports policy, can be allowed to "pick and choose" potential players for competitive sports? The answer is an emphatic "no". I am afraid that this is precisely what the impugned rule does - it makes an unnecessary classification between players who are Indians and players who are foreign nationals of Indian origin by first treating them alike. Having already treated the under-16 Indian and foreign nationals at parity with each other, the SRFI cannot subsequently make a distinction between the two on the basis of nationality. For the reasons aforestated, the present petition is allowed in terms of clause (a) of the prayer made by the petitioner. Consequently, the impugned rule restricting foreign nationals of Indian Origin from participating in the National Squash Championship is quashed. Taking into consideration the observations made by the Union of India at paragraph 6 of its short counter-affidavit filed on record, wherein, it is stated there is no uniform policy followed by National Sport's Federations with respect to participation of WP(C) Nos.4148 & 4263/20/(J Page 4 of31 foreign nationals of Indian origin in Indian Sports, and further, that this being a policy issue, the respondents are reviewing the matter, a direction is hereby issued to the Government that such review, as contemplated by them, shall be done as expeditiously as possible and in the best interest of sports in the country." (emphasis supplied) 7. The above judgment was challenged by the MY AS before a Division Bench of this Court by filing LPA No. 643 of 2008. In the meanwhile, consequent upon the judgment dated 1st October 2008 of the learned Single Judge, the MY AS came out with a policy announcement by way of its communication dated 26th December 2008 which reads as under: "No. F .45-5/2008 SPI.I Government of India, Ministry ofYouth Affairs & Sports, Department of Sports, Shastri Bhavan, New Delhi. Dated: 26.12.2008 To The President/Secretary General, Indian Olympic Association, B-29, Qutab Institutional Area, New Delhi. The President/Secretary Generals of All recognized National Sports Federations, Sir, In the matter of Karam Kumar v. Union of India and Ors. the Hon'ble High Court of Delhi has directed Government to review the matter of participation of foreign nationals of Indian origin in the national teams and bring out a uniform national policy in the best interest of sports in the country. The matter has, in pursuance to the above direction of the Hon'ble High Court of Delhi, been carefully considered after seeking comments of Indian Olympic Association-, recognized National Sports Federations and others concerned. WP(C) Nos.4148 & 4263/2010 Page 5 of31 Based on this consultation, an overwhelming view has emerged that the best interest of Indian Sports would I ~ be served by ensuring that players who are Indian l),:; citizens only represent the country in the National teams. This would ensure that the limited resources available are invested optimally in building world- class athletes. This would also provide the opportunity of giving international exposure and training to deserving local talent, which would further improve them to world class performance levels. Finally, it would serve the long term interests of the country to · emerge as a front runner in the field of sports. In view of the above, it has been decided that, henceforth only players who are citizens of ·India would be entitled to receive government support for representing the country in the national teams. Further; the above policy decision would also be applicable in the consideration of proposals for the participation of the national teams in international sports events. Yours faithfully, Sd/- Shankar Lal Under Secretary to Govt. of India." (underlining in original) 8. A press release was also issued on 26th December 2008 by the MY AS which stated that after consulting all the national sports federations and after seeking the comments of the Indian Olympic Association ('lOA') it had been decided that just as financial assistance from government is 4 restricted to Indian nationals only, the inclusion of players in the national teams would also be restricted only to Indian nationals. 9. While admitting LP A No.643 of 2008 tiled by the MY AS on ih January 2009, a Division Bench of this Court noted that a uniform . th policy had now been adopted by the Government of India on 26 WP(C) Nos.4148 & 426312010 Page 6 of 31 December 2008. It was, however, observed that: "There seems to be to some ambiguity in that behalf in as much as the apparent reading of the policy does seem to indicate as if the government does not want to spend on the training of the persons of Indian origin (PIO) and Overseas Citizens of India (OCI) but there is no debarment. This aspect would of course have to be examined while hearing the appeal." 10. A special selection was directed to be he~d for the Petitioner to determine whether he was entitled to represent India in the Asian Junior Championship commencing on 16th J ar,mary 2009, based on his performance alone. 11. On 12th March 2009 the MY AS issued the following further clarification: To, "No.F .45-5/2008-SP-I Government of India Ministry of Youth Affairs and Sports Department of Sports Dated :New Delhi, the lih March, 2009 The President/Secretary General, Indian Olympic Association, B-29, Qutab Institutional Area, New Delhi The President/Secretary Generals of All Recognized National Sports Federations .. Sub: Government Policy on participation of foreign nationals of Indian origin in national teams. Sir, Government vide letter of even number dated 26th December, 2008 has laid down the national policy on the above WP(C) Nos.4148 & 426312010 Page 7 of31 mentioned project. 2. A question has arisen in respect of persons who are not Indian citizens as to whether the policy only restricts government support to them for participating in national teams or altogether makes them ineligible to participate in national teams. 3. As already stated in para 3 of the letter referred to above and for the reasons mentioned in the said letter, it is clarified that just as financial support from government is restricted to Indian Nationals only, the inclusion of players in the national teams is also restricted to Indian nationals only. In other words, only Indian nationals are eligible to be part of the national team andwalk under the Indian flag. Yours faithfully, Sd/- (Shankar Lal) Under Secretary to the Government of India" (emphasis supplied) 12. On 18th March 2009, in view of the fact that a clarificatory circular had been issued by the MY AS on lih March 2009, the LPA No. 643 of 2008 was dismissed as withdrawn. 13. Aggrieved by the above circulars, Karm Kumar filed Writ Petition (C) No. 104 77 of 2009 in this Court in which notice was issued on 28th July 2009. Subsequently on 6th November 2009 the writ petition stood dismissed in default. Thereafter the present petition was filed by Karm Kumar on 41h June 2010. An urgent interim order was sought by him in view of the impending South Asian Tournament in Sri Lanka. This Court was not inclined to grant any interim relief. This Court was informed that the selection for the said tournament in Sri Lanka had already taken place on lih June 2010 and therefore it was not possible for Karm Kumar to be accommodated. In the circumstances when on 5 1 h WP(C) Nos.4148 & 426312010 Page 8 of31 July 2010 counsel for Karm Kumar insisted on an interim relief being granted to permit him to participate in the Asian tournament which was[ ~ beginning in Sri Lanka in August 2010, this Court with the consent of the parties took up the writ petition itself for final hearing. Writ Petition (C) No. 4263 of 2010 by Robert Blanchette 14. This writ petition by Robert Blanchette contains a sketchy and incomplete narration of the facts. For instance, there is nowhere an indication that the petition concerns participation in equestrian events. Strangely, the list of dates in both, this petition as well as that of Karm Kumar, is identical. The following narrative is based on the few facts that could be discerned from the petition and what counsel stated during the hearing. 15. Robert Blanchette is a citizen of the United States of America (U.S.A) and holds that country's passport. He is a permanent resident of California. Robert Blanchette is stated to be qualified to be a PIO. It is claimed that Robert Blanchette "possesses a PIO status as his paternal grandparents are Indian citizens." His father who surrendered his Indian citizenship is also said to have a PIO status. He is aggrieved by the policy of MY AS in terms of which a PIO cannot represent India in international equestrian events. 16. It is stated by the counsel for Robert Blanchette that he is qualified to participate in international equestrian championships, and if the WP(C) Nos.4148 & 4263/2010 Page 9 of31 policy of the MY AS as announced on 26th December 2008 is set aside he will qualify to represent India as a third member of the India~/; equestrian team. 17. Both Petitioners seek to place reliance upon the judgment dated 18th March 2010 passed by the Punjab and Haryana High Court in Civil Writ Petition No. 18093 of 2009 (titled 'Sorab Singh Gill v. Union of India'). While allowing the said writ petition, the Punjab and Haryana High Court directed that Sorab Singh Gill, an OCI and a holder of a U.S.A. passport would be accorded the same status as an NRI insofar as participating on behalf of India in the international or regional shooting events was concerned. The two petitioners seek parity of treatment with Sorab Singh Gill. Reply fty the MYAS 18. In the counter affidavit filed by the MYAS in Karm Kumar's writ petition, it is pointed out that against the judgment of the High Court of Punjab and Haryana in Sorab Singh Gill v. Union of India, the Union of India filed a Special Leave Petition (C) No. 10880 of 2010 in the Supreme Court in which notice was directed to be issued on 19th April 2010. Since by that date the entire team which had been sent for participation in the international shooting event at Singapore had been recalled, the Supreme Court was informed that the application for stay had been rendered infructuous. Accordingly, no order was passed on the application for stay. WP(C) Nos.4148 & 426312010 Page 10 of 31 19. This court has heard the submissions of Ms. Roma Bhagat, the r learned counsel appearing for the Petitioners, Mr. A.S. Chandhiok, ~1 learned Additional Solicitor General of India, Mr. Jatan Singh, the learned counsel appearing for Union of India and Mr. K. Hari Shankar, the learned counsel, appearing for the SRFI. Interpretation of the relevant provisions 20. In order to appreciate· the context in which the issue arises, it is necessary first to notice some of the relevant provisions of the Constitution of India concerning citizenship. Article 5 talks of the position at the time of the commencement of the Constitution, Article 9 states that the deeming fiction of citizenship in Articles 5 to 8 will not apply if a person "has voluntarily acquired the citizenship of any foreign state." These words have been judicially interpreted to imply that obtaining a passport of a foreign country is an instance of voluntarily acquiring citizenship of that country. In Izhar Ahmad Khan v. Union of India, 1962 Supp (3) SCR 235 the Supreme Court was examining the validity of Rule 3 of the· Rules of evidence set out in Schedule III to the Citizenship Rules in terms of which the enquiry under Section 9(2) of the Act had to be conducted. The Court observed: "16. That takes us to Schedule III which prescribed the rules of evidence under which the enquiry under Section 9(2) would be held. Under Rule 1, it is provided that if it appears to the Central Government that a citizen of India has voluntarily acquired the citizenship of any other country, it may require proof within the specified time that he has not so acquired the citizenship of that WP(C) Nos.4148 & 4263/2010 Page 11 of31 country; and the burden of proving this shall be upon him. Under Rule 2, the Central Government is empowered to make a l1 reference in respect of any question, which it has to decide in the Y enquiry, to its Embassy in the country concerned or to the Government of the said country and it authorises the Central Government to act on any report or information received in pursuance of such reference. Then follows Rule 3 the validity of which is challenged before us. This rule reads thus: "The fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of the country before that date.". To the rest of the rules it is unnecessary to refer. The scope and effect of Rule 3, are absolutely clear. If it is shown that a citizen of India has obtained a passport from a foreign Government on any date, then under Rule 3 an inference has to be drawn that by obtaining the said passport he has voluntarily acquired the citizenship of that country before the. date of the passport. In other words, the proof of the fact that a passport from a foreign country has been obtained on a certain date conclusively determines the other fact that before that date; he has voluntarily acquired· the citizenship of that country.;' (emphasis supplied) 21. The above legal position was set out at a time when there was no policy of 'dual citizenship'. On March 31, 1999, the Government of India launched the Persons of Indian Origin ('PIO') Card Scheme for foreign passport holders of Indian origin. The broad policy was to give them parity with Non-Resident Indians ('NRis'). The PIO Card Scheme was revised on 191h July 2002 by the Government of India. By the Citizenship (Amendment) Act, 2003 (Act No. 6 of 2004) with effect from 3rd December 2004 provisions concerning overseas citizenship WP(C) Nos.4148 & 4263/2010 Page 12 of 31 were introduced in the Act. In particular Section 7 A regarding Q registration of OCis and Section 7B concerning 'Conferment of rights 7 on OCis' were inserted. Initially, on the basis of reciprocity, OCI status was proposed to be granted to PIOs in sixteen countries other than Pakistan and Bangladesh. A policy decision was taken by the Government of India to grant OCI status "to all overseas Indians who migrated from India after 26th January 1950 as long as their home countries allow dual citizenship." This was given effect to by a further amendment to Section 7 A of the Act with retrospective effect from 28th June 2005. 22. Section 7 A of the Act after the 2005 amendment reads thus: 7 A. Registration of overseas citizens of lndia.-The Central Government ·may subject to such conditions and restrictions .as may be prescrib~~' on an aP.plication made in this behalf, register as an overseas citizen of Inaia- (a) any person of full age and capacity,- (i) yvho is ci.tizen of another ~ountry, but was a citizen of India at the time of, or at any tlm·e after, the commencement of the Constitution; or . . . (ii) who is citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or (iii) who is citizen of another country, but belonged to a territory that became part of India after the 15tli day of August, 194 7; or (iv) who is a child or a grand-child of such a citizen; or (b). a person, who is a minor child of a person mentioned in clause (a): Provided that no person, who is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government rriay, by notification in the Official Gazette, specify, shall be eligible for registration as an overseas citizen of India. 23. Section 7 A of the Act created as it were a new species called the · WP(C) Nos.4148 & 4263/2010 Page 13 of31 OCI which appear to be a sub-species of PIOs although Section 7 A itself does not use the word PIO. It calls for a ·greater generational ;r\ proximity of the OCI with the country of origin than the PIO status does. Thirdly, while OCI has received, through the amendment to Section 7 A of the Act a statutory status, a PIO remains within the realm of a scheme without such statutory or constitutional status. In other words, while. the statutory provision governing an OCI can be traced to Article 11 of the Constitution, there is no corresponding statutory status· accorded to the PIO. While the above broad features distinguish an OCI from a ·PIO, the rights that go with either status are dependent on the policy of the Government of India. Thus the gaining of the status of an OCI or a PIO does not guarantee parity of treatment with Indian passport holders. Of course within OCis as a class there may be a case made out for non-discrimination and equal treatment in the context of Article 14 of the Constitution but not vis-a-vis Indian passport holders. The classification of PIOs and the sub-classification of OCis is based on intelligible differentia justifying a different treatment vis-a-vis Indian passport holders. This of course is the position as of today since it is reflective of the current policy of the Government of India concerning OCis and PIOs. If the policy changes hereafter to extend further rights to OCis and/or PIOs that would obviously be reflected in the notifications that are issued or the statutory changes that are brought about. That is not a matter for the court to dictate. WP(C) Nos.4148 & 4263120/0 Page 14 of31 24. To understand the limited nature of the rights conferred on OCis one has to tum to Section 7 B of the Act, which reads thus: ffJ 7·B. Conferment of rights on overseas citizens of India. ( 1) Notwithstanding anything contained in any other law for the time being in force, an overseas citizen of India shall be entitled to such rights [other than the rights specified under sub-section (2)] as the Central Government may, by notification in the Official Gazette, specify in this behalf. (2) An overseas citizen of India shall not be entitled to the rights conferred on a citizen of