By: Mohsin Rahim
Imagine this: you are a specialist doctor working in the UK. You have a comfortable life, a high salary, and global recognition. But your heart beats for your homeland. You remember the words of former Union Health Minister Ghulam Nabi Azad, who explicitly called upon doctors of Indian origin abroad to return. In 2012, he urged them to come back, promising them the opportunity to serve their motherland and even engage in private practice to make their return viable.
Inspired by such high-level assurances, you pack your bags, leave your lucrative career, and return to serve in a government hospital. You worked through the COVID-19 pandemic, risking your life to save thousands. Then, one day, the police knock on your door. You are not being given an award; you are being charged with a crime. Your crime? “Cheating” the government by working as a doctor while holding an Overseas Citizen of India (OCI) card.
This sounds like a dystopian nightmare, but for many specialised OCI doctors, it is a terrifying reality. In a shocking display of bureaucratic confusion, state-level authorities are prosecuting OCI professionals for the “crime” of serving the nation. This administrative hostility is not just a tragedy for the individuals involved; it is a legal disaster that exposes a deep disconnect in how our bureaucracy interprets the law. It is a classic case of the right hand (the Central Government) inviting talent in, while the left hand (local agencies) handcuffs them.
The Invitation: You Were Never “Foreigners”
To understand why these prosecutions are legally questionable, we must look at the rules as they stood when these doctors returned. The narrative being peddled by investigative agencies, claiming that OCI holders are “foreigners” who illegally “infiltrated” government jobs, is legally unsound. It ignores a decade of laws that explicitly invited these professionals.
Between 2005 and 2013, the government rolled out the red carpet. They issued a series of “Gazette Notifications”, or official government orders, that tore down the walls between an “Indian Citizen” and an “Overseas Citizen” in the professional world.
The permissions that created a vested right for these doctors are as follows:
1. The “One of Us” Rule (2005): The Ministry of Home Affairs (MHA) declared that OCI cardholders would have “parity with Non-Resident Indians (NRIs)” in education and finance. This meant if an NRI (who is an Indian citizen living abroad) could do it, an OCI could do it too. See MHA Notification S.O. 542(E)
2. The “Doctor’s License” (2009): The government issued a specific notification granting OCIs parity with NRIs for “pursuing the following professions in India: doctors, dentists, nurses, and pharmacists. ” It didn’t say “only in private clinics. “It gave a blanket right to practise the profession. See MHA Notification S.O. 36(E)
3. The “Western Degree” Acceptance (2008 & 2011): The Medical Council of India (MCI) changed its rules to recognise postgraduate degrees from the UK, USA, and Canada. They even exempted these doctors from screening tests, treating them as specialists ready to teach. See MCI Notification S.O. 459(E)
4. The Statutory Seal (2013): The Parliament passed a law that officially allowed OCI holders to teach in medical colleges. See IMC (Amendment) Second Ordinance, 2013
These weren’t loopholes; they were the law. When a doctor applied for a job in 2018 or 2019, they weren’t “hiding” their status. They were walking through a door the government had thrown wide open. Investigative agencies often argue, “But the job advertisement didn’t explicitly say OCI holders could apply.”
This argument is legally flawed. Under the law of parity, silence equals eligibility. Here is how it works:
• An NRI is an Indian citizen. An NRI is eligible for almost all government posts (except a few constitutional posts).
• The 2009 Notification gives an OCI holder the same rights as an NRI for working as a doctor.
• Therefore, if a job advertisement invites “Indian Citizens” (which includes NRIs) and does not specifically ban OCI holders, the OCI candidate is automatically eligible.
The legal principle is simple: If the advertisement did not specifically bar OCI cardholders from applying, they are eligible to apply. You cannot invite an NRI and then arrest an OCI for applying to the same post, because the law says they are equal professionals. To penalise a candidate years later for applying to an “open” advertisement is a violation of the basic principles of natural justice.
The ‘Game Changer’ & The Supreme Court Shield
So, where did the confusion start?
On March 4, 2021, the Ministry of Home Affairs issued a new notification. It stated that OCI cardholders would now need special permission for certain activities and clarified that for “public employment”, they are not citizens.
Bureaucrats read this and decided to go on a witch-hunt. They started applying this 2021 rule to doctors who had been appointed in 2018 or 2019. They tried to retroactively declare these appointments illegal.
But the Supreme Court of India stepped in to stop this madness. In the landmark judgement of Anushka Rengunthwar v. Union of India (2023), the Court laid down a protective shield (read the Judgment Here). The Supreme Court ruled on the “Doctrine of Non-Retrogression”. In simple terms, it means: you cannot change the rules of the game after the match has been played.
The Court held that:
1. Rights are Crystallised: If you got your OCI card before the cut-off date of March 4, 2021, your rights are locked in. You are governed by the old, benevolent rules (the 2005/2009 notifications).
2. No Back-Dating Laws: The government cannot use the 2021 restriction to fire or prosecute someone who joined under the earlier rules.
3. Continued Eligibility: Pre-2021 OCI doctors continue to have the right to work and teach, just as they did before.
This judgement is the law of the land. It makes it clear that prosecuting a pre-2021 OCI professional for holding a government post is unconstitutional.
The Great Hypocrisy
If you walk into AIIMS (All India Institute of Medical Sciences) in Delhi or Aligarh Muslim University (AMU), you will find OCI doctors working as professors. Their recruitment advertisements explicitly state: “Applications invited from Indian Nationals and OCI Cardholders.”
How can the same OCI card be valid for a professor at AIIMS (a central government institute) but be considered “criminal fraud” by a state-level investigation agency? It is the same card. It is the same law. The only difference is the competence of the authorities interpreting it.
The Fatal Flaw: Misreading Section 7B
At the heart of these wrongful prosecutions lies a fundamental misinterpretation of Section 7B of the Citizenship Act, 1955. State investigative agencies have latched onto this section, claiming it imposes a blanket ban on OCI holders in government service. This is a gross error of law.
Section 7B(2) creates a “negative list” of specific posts an OCI holder cannot hold. These are strictly high constitutional offices: the President, Vice-President, Judges of the Supreme Court or High Courts, and voters. That is the extent of the ban. The law does not list “doctors”, “professors”, or “medical teachers” in this prohibited category.
By inventing a prohibition that Parliament never wrote, these agencies are manufacturing crimes out of thin air. They are treating a professional teaching post as if it were a sensitive constitutional office, ignoring the clear statutory distinction. The Section 7B restriction was designed to protect the sovereignty of the highest offices, not to prevent a qualified specialist from treating patients in a government hospital.
Conclusion: From Wards to Courts
It is time to end this legal bullying. We are witnessing a tragic spectacle where doctors who once ran from ward to ward, saving lives during the darkest days of the pandemic, are now forced to run from court to court, pleading for their dignity. These are professionals who left behind comfortable lives, driven solely by the intent and desire to serve this nation.
Instead of gratitude, they have been served with charge sheets. Instead of support, they face the threat of deportation and unemployment. This is not just an attack on a few individuals; it is an assault on the very idea of a global medical community that wishes to contribute to India’s growth.
If we continue down this path, many brilliant minds will refrain from bringing their expertise back to our shores. We will effectively shut the door on rare and critical specialisations, such as geriatrics (the specialised study of elderly care, often focusing on treating vulnerable patients who cannot communicate their pain or needs due to age-related conditions), which are desperately needed but are currently close to non-existent in our medical landscape. We cannot afford to turn our “brain gain” into a “brain drain” all over again. The nation needs its healers in hospitals, not in the accused box.
– The author is an advocate at the Supreme Court of India.
