Centre's Decision To Bar OCI Students From General Seats Will Apply To Only Those Who Register As OCIs After 04.03.2021 : Supreme Court

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 nowThe 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 judgmentStatutory rights should not be withdrawn in an arbitrary mannerThe 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' opportunitiesThe 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 ...

Centre's Decision To Bar OCI Students From General Seats Will Apply To Only Those Who Register As OCIs After 04.03.2021 : Supreme Court

Manu Sebastian

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