By: Pratyush Pandey
Stephen Constantine, coach of the Indian Football Team, devastated by India’s loss to Guam, expressed his desire to select players of Indian origin to represent the Indian team. Interestingly, Guam had fielded several US-based players who have played for clubs in the Major League Soccer (MLS) in its win over India. Michael Chopra, who is considered one of the most talented Indian origin players and who represented Kerala Blasters in the Indian Super League (ISL), has also expressed his desire to throw on the blue jersey and join the Indian Tigers even if that requires him to give up his British passport. This article seeks to analyse Indian laws and FIFA regulations to determine whether Persons of Indian Origin (PIOs) and Overseas Citizens of India (OCIs) can represent India at FIFA events.
THE INDIAN LAW
The Citizenship Act (Amendment) Act, 2003 provides for sections 7A and 7B which give statutory recognition to OCIs. The requirements for registration of OCIs are discussed in 7A, while 7B lists rights which are not available to OCIs. Under 7B, the Government also reserves the prerogative to notify any right to which OCIs shall be entitled. The limited statutory rights available to OCIs show the intention of the Legislature to not treat OCIs at par with ordinary citizens. Even though PIOs are not statutorily recognised, they have the same status as OCIs in these matters.
Vide a circular in December 2008 and clarification in March 2009, the Ministry of Youth Affairs and Sports (MYAS) laid down that only Indian passport holders (Indians) will be permitted to represent India at international sporting events. Based on the circular, Squash Rackets Federation of India (SRFI) framed a rule which was challenged in Karm Kumar v. UOI in the Delhi High Court for being arbitrary and unfair. The challenge to the notification by Robert Blanchette (an equestrian player whose ‘paternal grandparents are Indian citizens’ and hence, he claimed to be a PIO) was clubbed together.
The case was heard by a single judge bench of Justice Muralidhar who held that OCIs/PIOs cannot be given the same treatment as Indians. Further, the statutory recognition of OCIs only entitled them to statutory rights under the Citizenship Act and not Fundamental Rights. The dual citizenship of OCIs is neither absolute nor at par with Indians. Petitioners argued that they were entitled to treatment at par with NRIs ‘in respect of all facilities available to them in educational fields’. Modern educational policies regard sports as an important component of good education. Petitioners also relied on Sorab Singh Gill  where the Punjab and Haryana High Court had held that like an NRI, an OCI could also represent India in international sporting events. Justice Muralidhar held that the right was limited to admission in educational institutions, the reasoning for the statement being that participation of a student in school forms an integral part of education. It could, however, not be extended to representation at international sporting events. The respondents also clarified that Sorab Singh was not permitted to participate in the event and MYAS had challenged the decision in the Supreme Court which had later held that ‘only Indian citizens could walk under the Indian flag at international sports events’.
It was also contended that it was arbitrary and unreasonable that a player be permitted to participate in national events but not allowed to represent the country at international events. The court had already directed the Central Government to come up with a uniform policy after consultation with National Sports Federations and the decided policy was that only Indian passport holders should be permitted. The court held that a policy decision cannot be said to be arbitrary and unreasonable – if the policy does not allow OCIs and PIOs to represent India, it cannot be termed arbitrary and unfair.
Earlier, FIFA Regulations also decided eligibility to play based on citizenship much like the Indian law. However, a policy change was called for when in order to strengthen their team, African countries started giving immediate citizenships to soccer stars from other countries.
The provisions for eligibility to play for representative teams are in Chapter VII of the Regulations Governing the Application of FIFA Statutes, 2013. Article 5 of the document lays down two principles of eligibility. First, any person who holds permanent nationality not dependent on residence in a certain country is eligible to play for the representative teams of the association of that country. Second, subject to the exceptions in Section 8, a person who has participated in an official competition for one Association may not play an international match for another country.
An application is to be made to FIFA for change of nationality of a player which permits only one change to a player eligible to represent several teams due to their nationality. Such change can only be made till their 21st birthday based on the following conditions:
- They have previously not played in an official competition at ‘A’ international level for their current association,
- They had already acquired the nationality of the country which they wish to represent before appearing in their first international match for current association, and
- They are not permitted to play for their new association in any competition in which they have represented their current association.
Players who have more than one nationality or have acquired a new nationality are also bound by the above conditions subject to Articles 5, 6 and 7.
A player eligible to represent more than one Association on account of their nationality shall have to fulfil at least one of the following conditions (in addition to the Article 5 test):
- They were born on the territory of the relevant association.
- Their biological mother or father were born on the territory of the relevant association.
- Their grandmother or grandfather were born on the territory of the relevant association.
- They have lived continuously on the territory of the association for at least two years.
If a player assumes a new nationality, they shall fulfil at least one of the first three conditions specified above, and they shall have lived continuously for at least five years after reaching the age of 18 on the territory of the association. These FIFA rules have permitted Lionel Messi to represent Argentina (home country) and not Spain (living there since he was 13), Diego Costa to represent Spain (acquired nationality) and not Brazil (home country) in FIFA tournaments. These are a couple of examples of the multitudes present in international football today. (Costa had appeared in 2 friendlies for Brazil, however since FIFA does not give official status to friendlies he was permitted to play for Spain.)
The Indian policy strictly prohibits PIOs and OCIs from representing the country at international sporting events. Indian courts have also upheld the fairness and reasonableness of the policy. However, FIFA rules do permit them subject to certain conditions. For Stephen Constantine and Michael Chopra to get what they want, a policy change is the way. The issue of picking foreign players over home-bred is an obvious issue which arises. While Constantine only sees it as a measure for instant results and sees training locals for the future, if a policy change is made, the consequences of the same will be seen in the future. Constantine’s argument that most other countries permit will fall against the question of whether most international sports federations permit the same. Since a policy change will not just be for football, it will impact other sports as well.
 Major League Soccer (MLS) is a professional soccer league representing the sport’s highest level in both the United States and Canada.
 The Indian Super League (ISL) is one of the top-tier, professional football leagues in India.
 AIR 2010 P&H 83 (India).
(Pratyush is a student at National Law University, Delhi.)