February 5, 2022
Good morning. Every Saturday, we write about one specific right that you possess as a citizen in our country. In today’s edition of “Know Your Rights”, we look at the rights of non-resident Indians.
KNOW YOUR RIGHTS – EDITION 25
Rights of Non-Resident Indians (NRIs)
18 million. That’s India’s diaspora population, making it the largest in the world, according to a 2021 UN report. Familiarly known as NRIs, they’re spread across the world, most prominently in the United Arab Emirates (3.5 million), the USA (2.7 million), and Saudi Arabia (2.5 million).
Given India’s domestic population, 18 million might not sound like a lot. Perhaps that number might have grown in the past year if not for the pandemic. Before we go further, let’s define an NRI. Broadly speaking, an NRI is someone of Indian birth or ancestry who lives outside India.
A more specific or strict definition – non-resident refers only to the person’s tax status. Income tax rates are different for NRIs and Indian residents. Per the Income Tax Act, 1961, a person is an Indian resident if they stay in India for at least 182 days in a financial year or 365 days spread over four consecutive years. If you don’t meet these criteria, you’re considered an NRI.
There is another category called Overseas Citizen of India (OCI). This is a form of permanent residency that’s available to persons of Indian origin or others, allowing them to live and work in India. The exceptions are for a person who has been a Pakistani or Bangladeshi citizen. It is not a status of citizenship, and hence the person doesn’t have the right to vote or hold public office. With demands of dual citizenship, OCI was introduced by The Citizenship (Amendment) Act, 2005. The government can revoke OCI status if a person obtained it illegally. The Citizenship (Amendment) Act, 2019 gave the government additional powers to revoke the OCI status of a person if they violate any local law.
Finances & Property
An NRI has many of the same financial rights that any Indian resident enjoys. If they’re a person who earns an income abroad, they can open a bank account in India. The funds deposited in this account can be funds remitted from abroad and foreign exchange from abroad. If the person moves back to India, they can continue to hold, transfer, and invest in foreign currencies, securities, and immovable property.
In this context, during the pandemic, many have returned to India. In other cases, NRI deposits with Indian banks have increased. Take Kerala, for example, deposits by NRIs have grown 10% in the last fiscal. As of March 31, last year, NRI deposits in banks across the state have reached ₹2,29 lakh crores.
Coming to property, regulators and the law enter the fray. The regulator is the RBI, and the law governing the purchase of immovable property by an NRI is the Foreign Exchange Management Act (FEMA). The RBI says an NRI can buy residential or commercial properties in India, but not agricultural land or plantation property. They don’t have to inform the RBI about the transaction and can buy multiple properties. While there was some confusion, the RBI reiterated and clarified it in December.
If an NRI wishes to bequeath property to their legal heirs or anyone else, they can. The same goes for the inheritance of immovable property, including agricultural land, which they aren’t allowed to buy. The real estate market in India for NRIs has been quite lucrative. Once the first national lockdown was lifted, there was an increase in queries on buying real estate in India. A 360 Realtors report showed that NRIs invested $13.1 billion in the Indian real estate market in FY2021. It’s likely to grow by 12% for FY 2022.
Voting
Internationally, the right to vote and public participation in government are recognised as basic human rights. To provide some context, take the United States as an example. US residents living overseas can vote by mail. They can request mail ballots and send them back to make sure their vote is counted as a mail-in ballot.
Per Indian law, ‘ordinary residence’ in a constituency was a pre-condition to being registered in the electoral roll. In 2010, the election law was relaxed. Parliament passed the Representation of People (Amendment) Bill, 2010, to allow NRIs to vote in Indian elections. However, it came with a rider – the person can vote only if they are physically present in the constituency on polling day.
This had obvious practical limitations. In the years that followed, the Election Commission (EC) looked for options to allow NRIs to vote overseas. In 2013 and 2014, NRIs filed three writ petitions in the Supreme Court seeking a change. After the 2014 elections, a 12-member committee was set up to look into the three things – voting by post, voting at an Indian mission abroad, and online voting.
Online voting was a no-go due to security and privacy concerns. Voting at Indian missions abroad was also ruled out due to inadequate resources. In 2015, the committee recommended e-postal ballot and proxy voting. The proposal for proxy voting rights was passed by the Union cabinet in 2017. In December 2020, the EC told the government it favoured allowing NRIs to vote via postal ballots. In March 2021, the Ministry of External Affairs (MEA) cited logistical challenges for postal ballots. They were also concerned about the identification of voters. Till postal ballots become a reality, NRIs need to be physically present at their polling station with the mandated ID.
Marriage Laws
We don’t have official data on NRI marriages. However, the number of complaints on NRI marriages might give some indication. In India, there isn’t formal legislation on matrimonial laws applicable to NRIs. They are governed by personal laws. There was an attempt to change this. In 2019, External Affairs Minister Sushma Swaraj introduced a Bill on the Registration of Marriage of Non-Resident of India.
It was a joint initiative by the Ministry of External Affairs, Ministry of Women and Child Development, Ministry of Home Affairs, and Ministry of Law and Justice. The primary objective was to provide protection and create more accountability against the exploitation of Indian women by their NRI spouses. Among the provisions was mandatory registration within thirty days of marriage in India or abroad. If this isn’t done, authorities can impound or revoke the passport of the NRI through an amendment to the Passport Act.
The Bill was necessitated after the government received complaints mostly from NRI women. Between 2016 and 2019, the MEA received more than 4,600 complaints of Indian women being deserted by their NRI husbands.
The main challenge for NRI wives remains jurisdiction. A judicial decision passed by a foreign court doesn’t hold much power and more or less becomes unenforceable. There is an exception. “Reciprocating Territories” as defined by Section 44A of the Code of Civil Procedure, 1908 (CPC). If a woman marries an NRI whose habitual residence is the UAE, the UK, Fiji, Singapore, New Zealand, Hong Kong, Papua & New Guinea, Trinidad & Tobago, Bangladesh, The Cook Islands, and the Trust Territories of Western Samoa, judgments passed there are equivalent to judgments passed by an Indian court.
In general, NRIs enjoy many of the same fundamental rights that a person residing in India does – the right to equality, freedom of speech, expression, practice of any religion or profession, cultural and educational rights, right against discrimination, etc. Rights for voting, finances, and marriage are noteworthy as they’ve been the subject of much public and legislative discussion. Some are even ongoing and will affect the lives of the ever-growing NRI population worldwide.