BREAKING : Karnataka High Court Upholds Centre's Notification Treating OCIs As NRIs For College Admissions; Terms It "Protective Discrimination" For Natives

The Karnataka High Court has upheld the validity of the Central Government notification dated March 4, by which Overseas Citizenship of India (OCI) cardholders are not to be eligible for admission in professional courses against any seat reserved exclusively for Indian citizens. A single judge bench of Justice Krishna S Dixit, while dismissing a bunch of petitions said, "These writ petitions being devoid of merits fail. However in the special circumstances of the case, all the petitioners are permitted to stake a claim for admission consistent with the interim reliefs made in favour with many of them. Subject to the eligibility & qualification; a period of ten days is granted to the petitioners to produce requisite documents before the Karnataka Examination Authority." The petitioners Alekhya Ponnekanti and others had sought to quash the government notification which reads thus: "In exercise of the powers conferred by sub section (1) of section 7B of the Citizenship Act 1955... and in supersession of the notification... dated 11.04.2005 and the notification...dated 05.01.2007 and S.O.36(E), dated 05.01.2009..., the Central Government hereby specifies the following rights to which an Overseas Citizen of India Cardholder...shall be entitled...namely:- (4) parity with Non-Resident Indians in the matter of,- (ii) appearing for the all India entrance tests such as National Eligibility cum Entrance Test, Joint Entrance Examination (Mains), Joint Entrance Examination (Advanced) or such other tests to make them eligible for admission only against any Non- Resident Indian seat or any supernumerary seat: provided that the OCI cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens;....... Explanation.-For the purposes of this notification,- (1) The OCI Cardholder (including a PIO cardholder) is a foreign national holding a passport of a foreign country and is not a citizen of India. (2) "Non-Resident Indian" shall have the same meaning as assigned to it in the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018 made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999) and who fulfils the "Non-Resident Indian" status as per the Income Tax Act, 1961 (43 of 1961)." Petitioners arguments: It was submitted that under the erstwhile Notifications of 2005 & 2009, OCI Card Holders had the accrued right of admission to the professional educational courses and these rights are saved even under the impugned Notification, but for the objectionable part. The Central Government has without competence issued the notification, in which only the Parliament which could have issued. Moreover, it is issued in violation of the principle of natural justice i.e., audi alteram partem (Listen to the other side). It also offends the principle of non-retrogression of rights. Respondents opposed the petitions. It was submitted that, "Petitioners are not the citizens of India; they possess foreign passports and Indian VISA granted by our Embassy in their respective countries; they are only OCI Cardholders. Citizenship & OCI status are mutually exclusive. Our Constitution does not sanction dual citizenship on which petitions are structured." Further, the rights of aliens are only those which have been specifically conferred by the Central Govt, the rights un-irrevocably given by a subordinate legislation can be taken away any time. The principles of natural justice are alien to legislative process and therefore they remain so to quasi-legislative process as well, what right should be given to the aliens is a matter of policy. Moreover, impugned policies of the kind are made "to protect the rights of Indian citizens in such matters". Since Indian citizens constitute a class apart for a favorable treatment, in matters of this nature; the native citizens are comparatively in a disadvantageous position and therefore, they cannot be made to compete with the OCI Cardholders. Court findings: Firstly the court relied on the single judge order in the case of W.P.Nos.7376- 7378/2019 between Pranav V Deshpande v. State & Others, decided on 10.4.2019 and the subsequent appeal against the order, wherein notification issued in 2005 and 2009 were under challenge. The court in its order had recorded a finding that OCI Cardholders are not Indian citizens. Further the court agreed with the submissions that impugned part of the 2021 Notification is consciously incorporated with intent to protect the interest of the domiciling natives who lack the competitive edge qua the OCI Cardholders and the NRIs, both these classes i.e OCI & NRI who are now equated to each other obviously have greater exposure to the outer world, by virtue of birth & brought up. The court also noted, "Article 14 of our Constitution sanctions...

BREAKING : Karnataka High Court Upholds Centre's Notification Treating OCIs As NRIs For College Admissions; Terms It "Protective Discrimination" For Natives

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