The tug-of-war between the country’s bureaucracy and its judiciary over the rights of overseas Indians to represent India in international tournaments.
What our babus propose, our judges dispose!
Or so it seems. Indian sport — and with it the careers of several young and talented sportspersons, in particular — finds itself in a peculiar quandary, admittedly not of its own making. In 2008, in a piquantly timed move, the Indian government came out with its perverse version of a New Year “gift” for foreign-based people of Indian origin who were not citizens: a directive effectively prohibiting anyone who does not carry an Indian passport from representing the country in international sports meets.
The directive disappointed and angered non-residents who felt that allowing their kids to represent their homeland was but a minor concession the Indian government could give in return for the remittances and expertise they have been collectively repatriating into their mother-country for decades. Furthermore, if an Italian-born foreigner like Sonia Gandhi could be offered India’s prime ministership, and run the country albeit by remote control, why stop a person of Indian descent from bringing sporting glory to the nation?
The issue of local contenders who face the odds of living and training in the grind of India’s less-than-international-standard conditions, and thus are unable to shine against the imported “Indians” in the selection trials, was another spiky issue in the controversy. Where would the home-grown talent end up if the latter routinely jostled them out of reckoning and deprived them of their own national colors? When would these sons and daughters of the soil ever get international exposure in the field of competitive sport?
The prohibitory policy directive from India’s Sports Ministry (“Not Required Indians” Little India, February 2009) appeared at the time to have effectively resolved the controversy for good. But true to the traditional Indian belief that nothing dies, it only gets reincarnated in another form, the contentious issue raised its head again when the High Court of Punjab and Haryana last month struck down the governmental directive as discriminatory, and instead directed the government to allow people with Overseas Citizen of India (OCI) cards to represent the country in international tournaments.
In Sorab Singh Gill v Union of India, the High Court bench was ruling on the petition of a shooter of Indian origin who obtained an OCI card in 2007, won two gold medals representing India in the Asian Championships in Kuwait, but was sidelined under the 2008 policy directive. The Court based its judgment on an April 2005 gazette notification by the Ministry for Home Affairs specifying that, apart from a multiple-entry lifetime visa and the exemption from registering with the Foreign Registration Office on every visit, an OCI cardholder could claim equal status with NRIs “in respect of all facilities available to them in economic, financial and educational fields….”
Two later notifications from Ministry of Overseas Indian Affairs in 2007 and 2009 heaped several more benefits on OCIs, but the key citation was the April 2005 directive. But even here, the Court resorted to some rather sharply convoluted reasoning.
For one, the word “sports” features nowhere in the cited notification. That however did not restrain the Court from enthusiastically accepting the petitioner’s argument — based on two precedents from the Delhi High Court and the Supreme Court of India — that, since modern educational policies regard sports as an essential component of good education, the expression “education” must be given a broad meaning.
The relevant question is how broad? Isn’t there a real danger of vitiating a concept by diluting — even polluting — it beyond a reasonable point? How far can one stretch an argument and expand its scope before it snaps like an over-extended rubber-band?
For another, the court put forth the rather curious conclusion that it has not struck down the government’s policy directive, but merely put OCIs (meaning persons of Indian origin anywhere in the world who can afford to pay the one-time card fee of $275 or equivalent in local currency) on parity with NRIs. This defies comprehension. By allowing a non-citizen to represent the country in the face of a policy decision that sought to ensure “that players who are Indian citizens only represent the country in national teams,” the Court has all but pulled the rug from beneath the governmental authority and riddled its directive with loopholes.
That’s not all. It cleverly sought to fine-tune the notion of Indian citizenship and its relinquishment to suit its ends. According to the judgment, the constitutional provision stripping Indian citizenship from someone who voluntarily acquires the citizenship of another country does not apply to Sorab Singh Gill, because he never “voluntarily” acquired U.S. citizenship. Reason: he was born there — obviously an act beyond the pale of his own volition. Add to this happy circumstance, the fact that he was brought to India by his parents when he was a year old, and has since resided and studied in India — and you have the argument sealed and delivered at least in the case of Sorab.
All of which opens a Pandora’s Box of possibilities. The possibility that the Indian Government might appeal the judgment in the Supreme Court. The possibility that future litigation on this issue might turn and twist on the point that this is after all a High Court verdict which normally holds only within its state borders. Also that it was expressly relevant to a single individual, and so lacks broader application.
And the possibility that our bureaucrats might circumvent the judgment with another cleverly crafted policy. To be fair, the government had come up with the exclusionary directive only at the behest of an earlier judgment: Delhi High Court, in Karm Kumar v Union of India, had asked for a uniform policy to standardize the selection process across different sports and sports bodies in the country.
But the possibility one dreads the most is the devastating effect such a ping-pong skirmish between the bureaucracy and the judiciary could have on the careers of Indian-origin sportspersons the world over. Imagine the uncertainty of training for an international tournament with the gnawing suspicion that another policy directive or court verdict might scramble again one’s aspirations of playing for India.
Karm Kumar’s father, Rahul, lambasted the system for ruining his son’s international career, which was on hold during the two-year pendency of the Sorab Gill suit, during which squash player Karm reportedly lost his peak form. An embittered Kumar (senior) has an interesting question for the ministry babus: “If my son has an OCI card, but was not allowed to play for his country because he does not have an Indian passport, what does the word ‘citizen’ in OCI mean?”