3 Feb 2023 5:31 AM GMT
The Supreme Court, on Friday, held that the notification issued by the Central Government in 2021 - which took away the rights of Overseas Citizens of India (OCI) category students to apply for general seats and confined their right only to Non-Resident Indians (NRI) category seats- will apply only prospectively from the date of the notification, which is March 4, 2021.The notification issued...
The Supreme Court, on Friday, held that the notification issued by the Central Government in 2021 - which took away the rights of Overseas Citizens of India (OCI) category students to apply for general seats and confined their right only to Non-Resident Indians (NRI) category seats- will apply only prospectively from the date of the notification, which is March 4, 2021.
The notification issued by the Ministry of Home Affairs on March 4, 2021 stated that OCI students can only apply to NRI seats or supernumerary seats for all India entrance tests like NEET, JEE(Mains) and JEE (Advanced) and barred them from applying to seats exclusively reserved for Indian citizens.
Delivering judgment on petitions filed challenging these restrictions, the Court held that the provisions of the notification "shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 i.e. the date of the notification and who seek for a registration as OCI cardholder from that date".
The Court further held that that the "petitioners in all these cases and all other similarly placed OCI cardholders will be entitled to the rights and privileges which had been conferred on them earlier to the notification dated 04.03.2021 and could be availed by them notwithstanding the exclusion carved out in the notification dated 04.03.2021".
This means that the rights of those who are OCI card holders till 04.03.2021 will not get affected and all pre-existing rights are saved. The Court had earlier passed interim orders allowing certain OCI petitioners to apply for general category seats for 2021-2022 academic year. These admissions have been regularised, said Justice AS Bopanna while pronouncing the judgment.
The Court observed in the judgment that the notification suffered from "non-application of mind" as it had the effect of retroactively taking away the rights of those who had secured OCI cards before 04.03.2021.
The judgment was pronounced in a batch of petitions filed by OCI students challenging the 2021 notification. A bench comprising Justices AS Bopanna and CT Ravikumar heard the matter.
"Though the impugned notification dated 04.03.2021 is based on a policy and in the exercise of the statutory power of a Sovereign State, the provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 i.e. the date of the notification and who seek for a registration as OCI cardholder from that date since at that juncture the parents would have a choice to either seek for citizenship by descent or to continue as a foreigner in the background of the subsisting policy of the Sovereign State".
Most petitioners had completed their education in India; unfair to ask them to go back to their birth nation now
The Court noted that most petitioners had completed their entire school education in India, despite their birth in a foreign country. It further noted that the Central Government had been expanding the rights bestowed on OCI card holders through its previous notifications issued in 2005. These rights were conferred in exercise of powers under Section 7B of the Citizenship Act 1955.
In this background, though the doctrine of legitimate expectation may not apply strictly, the Court observed that the "statutory right conferred had sown the seed of hope recognising the affiliation to this country".
"Having undertaken the entire educational career in India or at least the High School onwards, they cannot at this stage turn back to the country in which they were born to secure the professional education as they would not be in a position to compete with the students there either, keeping in view the study pattern and the monetary implications", the Court stated in the judgment
Statutory rights should not be withdrawn in an arbitrary manner
The Court stated, "the right of the OCI Cardholders is a midway right in the absence of dual citizenship. When a statutory right was conferred and such right is being withdrawn through a notification, the process for withdrawal is required to demonstrate that the action taken is reasonable and has nexus to the purpose. It should not be arbitrary, without basis and exercise of such power cannot be exercised unmindful of consequences merely because it is a sovereign power".
No material to show benefits to OCI students deprived Indian students' opportunities
The Centre's justification was that the move was intended to protect the admissions for Indian students. However, the Court said that except a bare statement, "there is no material with regard to the actual exercise undertaken to arrive at a conclusion that the participation of OCI Cardholders in the selection process has denied the opportunity of professional education to the Indian citizens".
The Court formed the opinion that there are rights accrued to OCI students who had been living in India for past several years ( the judgment illustrated the case of a petitioner who had been living in India since 2003), which cannot be retroactively taken away abruptly.
"The goal post is shifted when the game is about to be over. Hence we are of the view that the retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided", the Court held.
The Court also expressed the view that the future application of notification should be re-looked by the "higher echelons of the Executive" having regard to the wide ramifications on the Indian diaspora.
Last year, the Supreme Court had passed an interim order allowing OCI candidates to apply to general seats for NEET admissions. However, the Court had clarified that the interim order was confined only to the 2021-2022 academic year. In the present academic year, instead of granting interim relief, the Supreme Court said that it would hear the matter at length and finally decide the same.
Arguments during hearing
Referring to the judgment in Maneka Gandhi v. Union of India, Senior Advocate, Mr. P. Chidambaram, appearing on behalf of the OCI students, had submitted that while classification is allowed, micro-classification has been frowned upon by this Court. He had pointed out that, while those with OCI status are eligible only for NRI seats, NRIs can apply for NRI as well as Indian seats. It had been argued that till 2020, the OCI students were considered for general category seats.
Senior Advocate, Mr. K.V. Vishwanathan, appearing for students who are born to OCI parents, and have been residing in India had submitted that OCIs can't be compared with Non-Resident Indians (NRIs), as the NRIs are living abroad and are earning in foreign currency. However, many OCI families are staying in India.
The Senior Counsel explained that OCI was a concept introduced by the Government of India in 2005 to confer certain rights to persons of Indian origin, who may have foreign citizenship. The scheme was floated to encourage them to settle in India and seek their services here. In some cases, children may have obtained foreign citizenship when they were born abroad while their parents were working there. They might have returned to India later; they might have been brought up in India, but still have the OCI status due to their foreign citizenship.
It had been also emphasised on that the percentage of NRI seats in medical admissions is very less and the fees for such seats is exorbitant, which can't be afforded by OCI students living in India.
ASG Aishwarya Bhati ,appearing for the Union Government, submitted that the petitioners are trying to compete in the seats meant for Indian citizens, who have no avenues outside, whereas the OCI students can get citizenship rights abroad.
During the course of the hearing the Bench had asked the Senior Counsel for the OCI students why they are not giving up their foreign citizenships to compete in the general category for admission to medical colleges.
Mr. Vishwanathan had addressed the concern raised by the Bench by submitting that the petitioners are not seeking conferral of any new rights but the continuation of the benefits which were being given till 2021. In this regard, he had referred to Section 7B of the Citizenship Act 1955, which states that the OCI persons are entitled to the rights specified by the Government. Since the rights had been in existence for long, there is a legitimate expectation and the sudden withdrawal of the rights is arbitrary. It had been asserted, many OCIs chose to settle in India on the basis of the rights conferred under Section 7B. Mr. Vishwanathan had contended that the Centre's notification is painting all OCIs with the same brush, without considering persons who have been residing in India for long.
[Case Title: Anushka Rengunthwar And Ors. v. Union of India And Ors. WP(C) No.891/2021]
Citation : 2023 LiveLaw (SC) 73
For Parties(s) Mr. Abhay Pratap Singh, AOR Mr. Aaryaan Sadanand, Adv. Ms. Mitali Umat, Adv. Mr. Sriram P., AOR M/S. K J John And Co, AOR Mr. Abishek Jebaraj, AOR Ms. A. Reyna Shruti, Adv. Mr. Renjit V Philip, Adv. Ms. Srishti Agnihotri, AOR Mr. Abishek Jebaraj, Adv. Ms. Sanjana Grace Thomas, Adv. Ms. A. Reyna Shruti, Adv. Mr. Renjit V. Philip, Adv. Ms. Mantika Vohra, Adv. Mr. P Chidambaram, Sr. Adv. Mr. K. V Viswanathan, Sr. Adv. Mr. Kunal Cheema, AOR Mrs. Ruchita Kunal Cheema, Adv. Mrs. Aditi Deshpande Parkhi, Adv. Mr. Shivam Dube, Adv. Mr. Romy Chacko, AOR Ms. K. V. Bharathi Upadhyaya, AOR Mr. Shivendra Singh, AOR Mr. Bikram Dwivedi, Adv. Mr. Dhananjaya Mishra, Adv. Dr. Mukut Nath Verma, Adv. 5 Mr. B. K. Satija, AOR Mr. Himanshu Satija, Adv. Mr. Harshit Khanduja, Adv. Mrs. Neha Mehta, Adv. Mr. Mukund P. Unny , AOR Mr. Tushar Mehta, Solicitor General Mr. Aishwarya Bhati, A.S.G. Mr. Apoorva Kurup, Adv. Mrs. Aakanksha Kaul, Adv. Mrs. Ruchi Kohli, Adv. Mr. Kanu Agarwal, Adv. Mr. Udai Khanna, Adv. Mrs. Deepabali Dutta, Adv. Ms. Poornima Singh, Adv. Mr. Rustam Singh Chauhan, Adv. Mr. Manvendra Singh, Adv. Mr. Arvind Kumar Sharma, AOR Mr. V. N. Raghupathy, AOR Mr. Manendra Pal Gupta, Adv. Mr. Dhanesh Ieshdhan, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Rupesh Kumar, AOR Ms. Pankhuri Shrivastava, Adv. Ms. Neelam Sharma, Adv. Mr. Rajeev Sharma, Adv. Mr. Sonal Jain, AOR Mr. Arjun Mitra, Adv. Mr. Udayan Jain, Adv. Ms. Kajal Sharma, Adv. Mr. Sibo Sankar Mishra, AOR Mr. Nishe Rajen Shonker, AOR Mrs. Anu K Joy, Adv. Mr. Alim Anvar, Adv. Mr. Saaketh K, Adv. Mr. A. Karthik, AOR M/s Smrithi Suresh, Adv. Mr. Krishan Kumar, AOR Ms. Neetu Sharma, Adv. Mr. Nitin Pal, Adv. Ms. Namrata Chadha, Adv. Ms. Muskan Jain, Adv. Mr. Dheeraj, Adv. 6 Mr. Rajat Joseph, AOR Ms. Rekha Dayal, Sr. Adv. Mr. Hitesh Kumar Sharma, Adv. Mr. S.K. Rajora, Adv. Mr. Akhileshwar Jha, Adv. Ms. Niharika Dewivedi, Adv. Ms. Shweta Sand, Adv. Mr. Ravish Kumar Goyal, Adv. Mr. Amit Kumar Chawla, Adv. Mr. Nitin Sharma, Adv. Ms. Sandhya Sharma, Adv. Mr. Ravindra Adsure, AOR Mr. Lav Mishra, Adv. Mr. Yash Prashant Sonawane, Adv. Mr. Rohan D, Adv.
Citizenship Act 1955- Section 7B- Rights of Overseas Citizens of India - Notification dated 04.03.2021 issued by MHA barring OCI students from competing in seats meant for Indian students in NEET/JEE challenged- Court holds that the notification will apply only prospectively from 04.03.2021- Provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 and who seek for a registration as OCI cardholder from that date - Para 55
Citizenship Act 1955- Section 7B- Rights of Overseas Citizens of India - Court urges that higher echelons of the Executive should relook the future application of the notification dated 04.03.2021 having regard to the wide ramifications on Indian diaspora - Para 59.
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