We had earlier reported on this blog about the decision of the High Court of Punjab and Haryana holding that Overseas Indian Citizens could represent India in international events. However recently the Delhi High Court has passed an order, not agreeing with this view, holding that only Indian citizens can represent India.
Holding that it was not within the domain of the Court to dictate policy-decisions upon the Government and that it had already been decided by the Government that only Indian citizens were allowed to represent India in international sports events, the High Court dismissed the petition filed by one Karam Kumar and Robert Blanchette inter alia observing as under;
39. This Court is of the view that the policy decision taken by the Government of India as announced on 26th December 2008, as subsequently clarified on 12th March 2009, restricting the right to represent India in international sporting events to Indian passport holders, cannot be said to be arbitrary, irrational or unreasonable. There is a justification in insisting that only Indian passport holders should represent India in an international sporting event. Those with foreign passports obviously owe their allegiance to the country of which they hold the passport. As long as the policy of the Government of India does not recognize dual citizenship in all aspects, this Court cannot accept the submission that even foreign passport holders should be permitted to play for India in international sporting events. Ultimately the decision whether Indians alone should be allowed to represent India in an international event is a matter of policy of the Government of India. The scope of the powers of this Court under Article 226 of the Constitution of judicial review of such policy decision is extremely limited.
40. It is perfectly possible that only Indian passport holders are allowed to represent India in international sporting events whereas national events are thrown open to both OCIs and PIOs. This Court finds nothing unreasonable or irrational in these two distinct policies: one for the national tournaments and the other for international tournaments.
56. This Court is unable to accept the above submission. A uniform policy had to be adopted on the question of permitting PIOs and OCIs to represent India in international sporting events. To reiterate, it is possible that this departure from the past practice might prove to be detrimental to some of the PIOs and OCIs who were expecting to represent India in international sporting events for all times to come. However, the mere fact that it would adversely affect some persons does not make a uniform policy that is based on rational criteria, arbitrary or unreasonable. The entire life of a sportsperson does not hinge only on representing a country in an international sporting event. In each field of sports, there are several competitive tournaments held throughout the year all over the world where participation does not hinge on nationality.
The High Court further held that there was a distinction between 'citizens' and 'nationals', the latter being a term of wider magnitude. Thus whereas all citizens were nationals, all nationals were not citizens. The High Court declared in this regard the following;
53. As far as the legal position in India is concerned, wherever a reference is made to an Indian `national‘, in law it means an Indian `citizen‘. But the vice versa is not true. In State Trading Corpn. of India, Ltd. v. CTO (1964) 4 SCR 99 the Supreme Court explained:
'But the question still remains whether 'nationality' and 'citizenship' are interchangeable terms. 'Nationality' has reference to the jural relationship which may arise for consideration under international law. On the other hand 'citizenship' has reference to the jural relationship under municipal law. In other words, nationality determines the civil rights of a person, natural or artificial, particularly with reference to international law, whereas citizenship is intimately connected with civic rights under municipal law. Hence, all citizens are nationals of a particular State, but all nationals may not be citizens of the State. In other words, citizens are those persons who have full political rights as distinguished from nationals, who may not enjoy full political rights and are still domiciled in that country (vide P. Weis-Nationality and Statelessness in International Law pp. 4-6; and Oppenheim’s International Law, Vol. 1. pp. 642, 644).'
54. The Act and the policy refer to the notion of 'citizenship‘ and not 'nationality‘. Theoretically it may be possible to argue that nationality and citizenship are not necessarily one and the same thing. But where the requirement in terms of Article 9 of the Constitution of India read with Section 7B of the Act is to demonstrate that the person is an Indian citizen within the meaning of that statute, it is not enough to show that the person is an Indian 'national‘. Absent an explicit recognition of such status in law, a 'national‘ may not per se be entitled to the same treatment as a 'citizen‘.
Distinguishing the decision of the Punjab and Haryana High Court the Bench observed as under;
34. As far as this Court can appreciate, the judgment in Sorab Singh Gill turned on the interpretation of the words 'educational fields' occurring in the notification dated 11th April 2005. The reasoning appears to be that the participation in sporting events by a student in school forms an integral part of education. This Court is unable to read the above notification dated 11th April 2005 issued under Section 7B of the Act as anything more than granting parity to the OCIs with NRIs in 'economic, financial and educational fields'. In the context of educational field what it connoted was that if an NRI was granted admission to educational institutions in India, under a quota meant for NRIs, then an OCI would equally be eligible to be considered under the said quota. The intention was not to permit OCIs to represent India in international sporting events. An OCI need not be a student studying in India at all. An OCI could well be merely a resident of a foreign country of which he or she is a passport holder. The right to represent India in an international sporting event does not, in the considered view of this Court, flow from the above notification dated 11th April 2005.
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