# ANUSHKA RENGUNTHWAR & ORS v. UNION OF INDIA & ORS

- **Citation:** [2023] 5 S.C.R. 243
- **Court:** Supreme Court of India
- **Decided:** 2023-02-03
- **Bench:** A. S. Bopanna, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anushka-rengunthwar-ors-v-union-of-india-ors-37172
- **Pages:** 58

## Headnote

Citizenship Act, 1955 - s.7B(1) - Through notifications
dtd.11.04.2005, 05.01.2009, the Overseas Citizens of India (OCI)
Cardholders were given the right of parity with Non-Resident
Indians (NRIs) in respect of the facilities as notified, including in
the field of education, who in turn had the parity with Indian Citizens
- Impugned notification dtd.04.03.21 issued by Respondent No.1,
in exercise of powers u/s.7B(1), took away the existing right of OCI
Cardholders of appearing for the Entrance Exams to compete with
Indian Citizens for the seats and restricted the admission only as
against the seats reserved for the NRIs or for supernumerary seats
- Proviso to clause 4(ii) of the notification further clarified that the
OCI Cardholders shall not be eligible for admission against any
seat reserved exclusively for Indian Citizens - Challenged by
students-OCI Cardholders aspiring to become Doctors by pursuing
the MBBS course by securing admission through NEET and
thereafter the post-graduation/super specialty - Held: Decision to
supersede the earlier notifications and take away the right of OCI
Cardholders should not have been nullified without reference to
the consequences - Impugned notification not saving such accrued
rights indicates non application of mind and arbitrariness - Though
the impugned notification is based on a policy and is in the exercise
of the statutory power of a Sovereign State, the provisions contained
therein shall apply prospectively only to persons 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 -
Impugned notification though competent u/s.7B(1) suffers from the
vice of non-application of mind and despite being prospective, is in
fact retroactive taking away the rights which were conferred also
as a matter of policy of the Sovereign State - Impugned portion of
the notification providing for supersession of the notifications
dtd.11.04.2005, 05.01.2007, 05.01.2009 and the clause 4(ii), its
[2023] 5 S.C.R. 243
243
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proviso and Explanation (1) thereto shall operate prospectively in
respect of OCI cardholders who have secured the same subsequent
to 04.03.2021 - Citizenship Amendment Act, 2003 - Constitution of
India - Article 11, 14 - Foreigners Act, 1946 - s.2(a) - Doctrine of
Legitimate Expectation.
Citizenship Act, 1955 - ss.7A, 7B(1) - Right of the Overseas
Citizens of India (OCI) Cardholders - Held: 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 was 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 - Citizenship
Amendment Act, 2003.
Citizenship Act, 1955 - s.7B(2) - Plea of the petitioners that
since s.7B(2) does not exclude the right u/Article 14, it is available
to be invoked and discrimination contemplated in the impugned
notification to exclude the OCI Cardholders should be struck down
- Held: Article 14 can be invoked and contend discrimination only
when persons similarly placed are treated differently - The OCI
Cardholders being a class by themselves cannot claim parity with
the Indian citizens, except for making an attempt to save the limited
statutory right bestowed - Constitution of India - Article 14.
Partly allowing the petitions/appeals, the Court
HELD: 1.1 Most of the petitioners are all persons who are
either of full age or are yet to reach the full age but are all children,
whose both parents or one of them are Indian citizens. All the
petitioners are registered as Overseas Citizens of India
cardholders is not in dispute. The right to which they are making
a claim is conferred under

## Text

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ANUSHKA RENGUNTHWAR & ORS.
v.
UNION OF INDIA & ORS.
(Writ Petition (C) No. 891 of 2021)
FEBRUARY 03, 2023
[A. S. BOPANNA AND C. T. RAVIKUMAR, JJ.]
Citizenship Act, 1955 - s.7B(1) - Through notifications
dtd.11.04.2005, 05.01.2009, the Overseas Citizens of India (OCI)
Cardholders were given the right of parity with Non-Resident
Indians (NRIs) in respect of the facilities as notified, including in
the field of education, who in turn had the parity with Indian Citizens
- Impugned notification dtd.04.03.21 issued by Respondent No.1,
in exercise of powers u/s.7B(1), took away the existing right of OCI
Cardholders of appearing for the Entrance Exams to compete with
Indian Citizens for the seats and restricted the admission only as
against the seats reserved for the NRIs or for supernumerary seats
- Proviso to clause 4(ii) of the notification further clarified that the
OCI Cardholders shall not be eligible for admission against any
seat reserved exclusively for Indian Citizens - Challenged by
students-OCI Cardholders aspiring to become Doctors by pursuing
the MBBS course by securing admission through NEET and
thereafter the post-graduation/super specialty - Held: Decision to
supersede the earlier notifications and take away the right of OCI
Cardholders should not have been nullified without reference to
the consequences - Impugned notification not saving such accrued
rights indicates non application of mind and arbitrariness - Though
the impugned notification is based on a policy and is in the exercise
of the statutory power of a Sovereign State, the provisions contained
therein shall apply prospectively only to persons 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 -
Impugned notification though competent u/s.7B(1) suffers from the
vice of non-application of mind and despite being prospective, is in
fact retroactive taking away the rights which were conferred also
as a matter of policy of the Sovereign State - Impugned portion of
the notification providing for supersession of the notifications
dtd.11.04.2005, 05.01.2007, 05.01.2009 and the clause 4(ii), its
[2023] 5 S.C.R. 243
243
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proviso and Explanation (1) thereto shall operate prospectively in
respect of OCI cardholders who have secured the same subsequent
to 04.03.2021 - Citizenship Amendment Act, 2003 - Constitution of
India - Article 11, 14 - Foreigners Act, 1946 - s.2(a) - Doctrine of
Legitimate Expectation.
Citizenship Act, 1955 - ss.7A, 7B(1) - Right of the Overseas
Citizens of India (OCI) Cardholders - Held: 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 was 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 - Citizenship
Amendment Act, 2003.
Citizenship Act, 1955 - s.7B(2) - Plea of the petitioners that
since s.7B(2) does not exclude the right u/Article 14, it is available
to be invoked and discrimination contemplated in the impugned
notification to exclude the OCI Cardholders should be struck down
- Held: Article 14 can be invoked and contend discrimination only
when persons similarly placed are treated differently - The OCI
Cardholders being a class by themselves cannot claim parity with
the Indian citizens, except for making an attempt to save the limited
statutory right bestowed - Constitution of India - Article 14.
Partly allowing the petitions/appeals, the Court
HELD: 1.1 Most of the petitioners are all persons who are
either of full age or are yet to reach the full age but are all children,
whose both parents or one of them are Indian citizens. All the
petitioners are registered as Overseas Citizens of India
cardholders is not in dispute. The right to which they are making
a claim is conferred under Section 7B(1) to Act, 1955. The right
to education which was conferred under the notification dated
11.04.2005, in parity with the Non-Resident Indians is due to the
fact that the Non-Resident Indians which is a separate class, had
such right similar to that of the Indian citizens in matters relating
to education. It is based on such right being conferred as far
back as in the year 2005, the OCI Cardholders were taking part
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in the process of selections conducted for undertaking educational
courses in India. Such benefit was extended to appear for the All
India Pre-Medical Test or such other tests to make them eligible
for admission in pursuance of the provisions contained in the
relevant acts, through the notification dated 05.01.2009. The said
benefit is being enjoyed by all the OCI Cardholders in the same
manner as the Non-Resident Indians were enjoying along with
the Indian citizens. In that circumstance, most of such OCI
Cardholders have been pursuing their entire educational career
in India. The extracted details would indicate that in all the cases
the petitioners have studied for more than six years in India and
in most of the cases, almost the entire educational career up to
the stage of the qualifying examination for the Pre-Medical Test
has been undertaken in India. Apart from the specific cases noted
herein, there are also petitioners/persons who had become
citizens of a foreign country for compelling reasons, but hold
benefit of OCI card. This would demonstrate that though in terms
of law, the petitioners were 'foreigners' due to the incident of
birth in a foreign country or such other compelling circumstances,
they continue to remain in India and to pursue their education
and had fully justified the mid-path benefit given to them based
on the OCI card. [Paras 38, 39, 41 and 42][287-E; 288-C-F; 291A-C]
1.2 The right which was bestowed through the notification
dated 11.04.2005 and 05.01.2009 insofar as the educational parity,
including in the matter of appearing for the All India Pre-Medical
Test or such other tests to make them eligible for admission has
been completely altered. Though the notification ex facie may
not specify retrospective application, the effect of superseding
the earlier notifications and the proviso introduced to clause 4(ii)
would make the impugned notification dated 04.03.2021
'retroactive' insofar as taking away the assured right based on
which the petitioners and similarly placed persons have altered
their position and have adjusted the life's trajectory with the hope
of furthering their career in professional education. [Para 44][292F-G]
1.3 Article 14 of the Constitution can be invoked and
contend discrimination only when persons similarly placed are
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ORS.
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treated differently and in that view the OCI Cardholders being a
class by themselves cannot claim parity with the Indian citizens,
except for making an attempt to save the limited statutory right
bestowed. To that extent certainly the fairness in the procedure
adopted has a nexus with the object for which change is made
and the application of mind by the Respondent No.1, before
issuing the impugned notification requires examination. [Para
45][293-A-B]
1.4 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. Except for the bare statement in the objection
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. There are no
details made available about the consideration made as to, over
the years how many OCI cardholders have succeeded in getting
a seat after competing in the selection process by which there
was denial of seats to Indian Citizens though they were similar
merit-wise. [Paras 46, 47][293-C-D; 294-B-C]
1.5 It is sought to be pointed out on behalf of the petitioners
that the explanation put forth does not indicate the true State of
Affairs in as much as, seats have still remained vacant in the
previous years. It is no doubt true that as contended by the learned
Additional Solicitor General, the vacancies will remain due to
several factors such as reservation of seats, other permutations
and combinations as also the preferred and non-preferred
colleges. Be that as it may, the dire need to take away the
bestowed right by applying the impugned notification even to
young students who technically though are not citizens of this
country but were provided certain rights in such manner would
not be justified as it does not demonstrate nexus to the object
sought to be achieved. Policy decision for the future, certainly is
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within the domain of Respondent No.1 based on the sovereign
powers of the State. Even on that aspect all that has been stated
is that the decision to issue the notification was taken in the
meeting of Secretaries held on 19.07.2018 without indicating the
nature of deliberations. Therefore, in that perspective, keeping
in view the present position, the decision to supersede the earlier
notifications and take away the right of OCI Cardholders in whose
favour such right had accrued and they have acted in a manner to
take benefit of such right should not have been nullified without
reference to the consequences. 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 implication.
[Para 48][295-D-H; 296-A]
1.6 It is evident that the object of providing the right in the
year 2005 for issue of OCI cards was in response to the demand
for dual citizenship and as such, as an alternative to dual citizenship
which was not recognised, the OCI card benefit was extended. If
in that light, the details of the first petitioner taken note is analysed
in that context, though the option of getting the petitioner No.1
registered as a citizen under Section 4 of Act, 1955 by seeking
citizenship by descent soon after her birth or even by registration
of the citizenship as provided under Section 5 of Act, 1955, was
available in the instant facts to her parents, when immediately
after the birth of petitioner No.1 the provision for issue of OCI
cards was statutorily recognised and under the notification the
right to education was also provided, the need for parents of
petitioner No.1 to make a choice to acquire the citizenship by
descent or to renounce the citizenship of the foreign country and
seek registration of the Citizenship of India did not arise to be
made, since as an alternative to dual citizenship the benefit had
been granted and was available to petitioner No.1 and the entire
future was planned on that basis and that situation continued till
the year 2021. Further, as on the year 2021 when the impugned
notification was issued the petitioner No.1 was just about 18 years
i.e., full age and even if at that stage, the petitioner was to renounce
and seek for citizenship of India as provided under Section
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5(1)(f)(g), the duration for such process would disentitle her the
benefit of the entire education course from pre-school stage
pursued by her in India and the benefit for appearing for the PreMedical Test which was available to her will be erased in one
stroke. Neither would she get any special benefit in the country
where she was born. Therefore in that circumstance when there
was an assurance from a sovereign State to persons like that of
the petitioner No.1 in view of the right provided through the
notification issued under Section 7B(1) of Act, 1955 and all 'things
were done' by such Overseas Citizens of India to take benefit of
it and when it was the stage of maturing into the benefit of
competing for the seat, all 'such things done' should not have
been undone and nullified with the issue of the impugned
notification by superseding the earlier notifications so as to take
away even the benefit that was held out to them. [Paras 50,
51][296-G-H; 297-A-F]
1.7 On the face of it the impugned notification not saving
such accrued rights would indicate non application of mind and
arbitrariness in the action. Further in such circumstance when
the stated object was to make available more seats for the Indian
Citizens and it is demonstrated that seats have remained vacant,
the object for which such notification was issued even without
saving the rights and excluding the petitioners and similarly
placed OCI Cardholders with the other students is to be classified
as one without nexus to the object. As taken note earlier during
the course this order, the right which was granted to the OCI
cardholders in parity with the NRIs was to appear for the PreMedical Entrance Test along with all other similar candidates
i.e. the Indian citizens. In a situation where it has been
demonstrated that the petitioner No.1 being born in the year
2003, has been residing in India since 2006 and has received her
education in India, such student who has pursued her education
by having the same 'advantages' and 'disadvantages' like that of
any other students who is a citizen of India, the participation in
the Pre-Medical Entrance Test or such other Entrance
Examination would be on an even keel and there is no greater
advantage to the petitioner No.1 merely because she was born in
California, USA. Therefore, the right which had been conferred
and existed had not affected Indian citizens so as to abruptly deny
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all such rights. The right was only to compete. It could have been
regulated for the future, if it is the policy of the Sovereign State.
No thought having gone into all these aspects is crystal clear
from the manner in which it has been done. [Para 52][297-F-H;
298-A-C]
1.8 In the above circumstance, keeping in view, the object
with which the Act, 1955 was amended so as to provide the benefit
to Overseas Citizen of India and in that context when rights were
given to the OCI cardholders through the notifications issued
from time to time, based on which the OCI cardholders had
adopted to the same and had done things so as to position
themselves for the future, the right which had accrued in such
process could not have been taken away in the present manner,
which would act as a 'retroactive' notification. Therefore, though
the notification ex-facie does not specify retrospective operation,
since it retroactively destroys the rights which were available, it
is to be ensured that such of those beneficiaries of the right should
not be affected by such notification. Though the rule against
retrospective construction is not applicable to statutes merely
because a part of the requisite for its action is drawn from a time
antecedent to its passing, in the instant case the rights were
conferred under the notification and such rights are being affected
by subsequent notification, which is detrimental and the same
should be avoided to that extent and be allowed to operate without
such retroactivity. It is not retrospective inasmuch as it does not
affect the OCI Cardholders who have participated in the selection
process, have secured a seat and are either undergoing or
completed the MBBS course or such other professional course.
However, it will act as retroactive action to deny the right to
persons who had such right which is not sustainable to that extent.
The goal post is shifted when the game is about to be over. The
retroactive operation resulting in retrospective consequences
should be set aside and such adverse consequences is to be
avoided. [Paras 53, 54][298-D-H; 299-A]
1.10 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
ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA &
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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. The
respondent No.1 in furtherance of the policy of the Sovereign
State has the power to pass appropriate notifications as
contemplated under Section 7B(1) of the Citizenship Act, 1955,
to confer or alter the rights as provided for therein. However,
when a conferred right is withdrawn, modified or altered, the
process leading thereto should demonstrate application of mind,
nexus to the object of such withdrawal or modification and any
such decision should be free of arbitrariness. In that background,
the impugned notification dated 04.03.2021 though competent
under Section 7B(1) of Act, 1955 suffers from the vice of nonapplication of mind and despite being prospective, is in fact
'retroactive' taking away the rights which were conferred also as
a matter of policy of the Sovereign State. Hence, the notification
being sustainable prospectively, it is hereby declared that the
impugned portion of the notification which provides for
supersession of the notifications dated 11.04.2005, 05.01.2007
and 05.01.2009 and the clause 4(ii), its proviso and Explanation
(1) thereto shall operate prospectively in respect of OCI
cardholders who have secured the same subsequent to
04.03.2021. [Paras 57-58][299-F-H; 300-A-B]
Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621; Navtej Singh Johar & Ors. v. Union
of India Thr. Secretary Ministry of Law and Justice
(2018) 10 SCC 1 : [2018] 7 SCR 379; LIC v. Consumer
Education and Research Centre (1995) 5 SCC 482 :
[1995] 1 Suppl. SCR 349; Universal Imports Agency
& Ans. Vs. Chief Controller of Imports and Exports and
Ors. [1961] 1 SCR 305; Navjyoti Coop.Group Housing
Society and Ors. v. Union of India & Ors. (1992) 4
SCC 477 : [1992] 1 Suppl. SCR 709; J. K. Industry
Ltd. v. Union of India (2007) 13 SCC 673 : [2007] 12
SCR 136; State of Punjab and Ors. v. Ram Lubhaya
Bagga & Ors. (1998) 4 SCC 117 : [1998] 1 SCR 1120;
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Izhar Ahmed Khan & Ors. v. Union of India AIR 1962
SC 1052 : [1962] Suppl. SCR 235; Indo-China Steam
Navigation Co.Ltd. vs. Jasjit Singh & Ors. AIR 1964
SC 1140 : [1964] SCR 594; State of A.P. v. Khudiram
Chakma (1994) Supple 1 SCC 615 : [1993] 3 SCR
401; Hans Muller of Nurenburg v. Superintendent,
Presidency Jail, Calcutta & Ors. AIR 1955 SC 367 :
[1955] SCR 1284; State of W.B. v. Anwar Ali Sarkar
AIR 1952 SC 75 : [1952] SCR 284; Budhan Choudhary
v. State of Bihar [1955] 1 SCR 1045;
State of Kerala v. N.M. Thomas (1976) 2 SCC 310 :
[1976] 1 SCR 906; K. Thimmappa v. Chairman, Central
Board of Directors (2001) 2 SCC 259 : [2000] 5 Suppl.
SCR 368 - referred to.
Case Law Reference
[1978] 2 SCR 621
referred to
Para 24
[2018] 7 SCR 379
referred to
Para 25
[1995] 1 Suppl. SCR 349
referred to
Para 26
[1961] 1 SCR 305
referred to
Para 27
[1992] 1 Suppl. SCR 709
referred to
Para 28
[2007] 12 SCR 136
referred to
Para 29
[1998] 1 SCR 1120
referred to
Para 31
[1962] Suppl. SCR 235
referred to
Para 32 (i)
[1964] SCR 594
referred to
Para 32 (ii)
[1993] 3 SCR 401
referred to
Para 32 (iii)
[1955] SCR 1284
referred to
Para 32 (iv)
[1952] SCR 284
referred to
Para 33 (i)
[1955] 1 SCR 1045
referred to
Para 33 (ii)
[1976] 1 SCR 906
referred to
Para 33 (iii)
[2000] 5 Suppl. SCR 368
referred to
Para 34
ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA &
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CIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition
(Civil) No. 891 of 2021.
Under Article 32 of The Constitution of India
With
Writ Petition (C) Nos. 503, 35, 246, 155, 347, 380, 322, 629, 740,
706, 741 of 2022, Civil Appeal No. 812 of 2023, Writ Petition (C) No. 22,
1070 of 2022, Writ Petition (C) No. 1230, 1186 of 2021, Writ Petition (C)
No. 838 of 2022, Writ Petition (C) No. 1032 of 2021, Writ Petition (C)
No. 961 of 2022, Writ Petition (C) Nos. 1123, 1128, 1125, 1150, 1129,
1141, 1143, 1149 of 2021, Civil Appeal Nos. 811, 810 of 2023, Writ Petition
(C) Nos. 1174 of 2021 and 34 of 2023.
P. Chidambaram, K. V. Viswanathan, Sr. Advs., Kunal Cheema,
Mrs. Aditi Deshpande Parkhi, Shivam Dube, Romy Chacko, Ms. K. V.
Bharathi Upadhyaya, Shivendra Singh, Dhananjaya Mishra, Bikram
Dwivedi, Rohan Sharma, Dr. Mukut Nath Verma, B. K. Satija, Himanshu
Satija, Harshit Khanduja, Mrs. Neha Mehta, Abhay Pratap Singh, Sriram
P., M/s. K J John and Co, Pratap Venugopal, Ms. Surekha Raman, Akhil
Abraham Roy, Vijay Valsan, Abhishek Anand, Ms. Unnimaya S., Abishek
Jebaraj, Ms. Srishti Agnihotri, Ms. Sanjana Grace Thomas, Ms. A. Reyna
Shruti, Ms. Mantika Vohra, Renjit V. Philip, Mukund P. Unny, Advs. for
the Petitioners.
Ravindra Keshavrao Adsure, Lav Mishra, Rohan Darade, Yash
Prashant Sonawane, Ms. Sakshi Ajit Kale, Advs. for the Applicant.
Ms. Aishwarya Bhati, A.S.G., Ms. Chitrangada R., M. Singh, Aman
Sharma, Ms. Poornima Singh, Rustam Chauhan, Apoorva Kurup,
Mrs. Aakanksha Kaul, Mrs. Ruchi Kohli, Kanu Agarwal, Udai Khanna,
Mrs. Deepabali Dutta, Sanjay Kumar Tyagi, Rajan Kumar Chourasia,
Nikhil Majithia, G. S. Makker, Arvind Kumar Sharma, Raj Bahadur Singh,
V. N. Raghupathy, Varun Varma, Sonal Jain, Rupesh Kumar,
Ms. Pankhuri Shrivastava, Ms. Neelam Sharma, Rajeev Sharma, Sibo
Sankar Mishra, Nishe Rajen Shonker, Abraham C. Mathew, Mrs. Anu
K Joy, Alim Anvar, Rajat Joseph, Hrishikesh Chitaley, Vijay Kari Singh,
Ranjeet Sangle, A. Karthik, Krishan Kumar, Ms. Rekha Dayal, Hitesh
Kumar Sharma, S. K. Rajora, Akhileshwar Jha, Niharika Dwivedi,
Ms. Shweta Sand, Ravish Kumar Goyal, Ms. Nitin Sharma, Amit Kumar
Chawla, Anil Kumar, Gaurav Sharma, Dhawal Mohan, Prateek Bhatia,
Advs. for the Respondents.
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The following Judgment of the Court was passed:
JUDGMENT
1. The petitioners in all these petitions are the Overseas Citizens
of India card holders. They are all students who have just reached the
full age or are below this age. All the petitioners are aspiring to become
Doctors by pursuing the MBBS course by securing admission through
NEET selection process and thereafter the post-graduation as also the
super specialty in the field of medicine. Some of them are also seeking
to pursue post-graduation and also a super specialty. For the purpose of
narration of facts, the averments as put forth in W.P.(C) No.891 of 2021
which was taken as the lead case is noted. The petitioners contend that
they have been putting in all efforts and were preparing to appear for
the NEET-UG examinations based on the right which was available to
them under the notifications dated 11.04.2005 and 05.01.2009. Through
the said notifications, the Overseas Citizens of India ('OCI' for short)
cardholders were given the right of parity with Non-Resident Indians
('NRIs' for short) in respect of the facilities as notified, including in the
field of education, who in turn had the parity with Indian Citizens. Through
the notification dated 05.01.2009, the said right to education in India was
also extended further, to appear for the All India Pre-Medical Test or
such other tests to make them eligible for admission in pursuance to the
provisions contained in the relevant acts. In view of such right being
extended to the OCI Cardholders by respondent No.1 in exercise of the
powers under Section 7B(1) of the Citizenship Act, 1955 ("Act 1955"
for short), the petitioners were also assured of appearing for the NEETUG exam so as to compete to secure a seat to pursue the medical course.
2. Such right was available to the petitioners from a point almost
immediately after their birth, since the petitioners in these petitions were
born in the year 2003 onwards. Except for the fact that they were born
in a foreign country, they had lived in this country for periods ranging
from 10 to 15/17 years. In that view, the entire educational career was
pursued in India, including the 12th standard so as to qualify for the NEETUG examinations and MBBS Course. In fact, in most of the cases, both
parents of the petitioners herein are Indian nationals and in any case,
one of them is an Indian national. Even in cases where both the parents
are OCI Cardholders, the children have lived most of their life in India
since their roots remain to be in India where grandparents and family
are here.
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3. When this was the position the respondent No.1 issued the
notification dated 04.03.2021 in exercise of the power under Section
7B(1) of Act, 1955 whereunder the existing right of appearing for the
Entrance Exams to compete with Indian Citizens for the seat was taken
away and restricted the admission only as against the seats reserved for
the Non-Resident Indians or for supernumerary seats. The proviso to
clause 4(ii) of the impugned notification dated 04.03.2021 in fact clarifies
that the OCI cardholders shall not be eligible for admission against any
seat reserved exclusively for Indian Citizens. This is done so, by providing
an explanation that the OCI Cardholder is a foreign national holding
passport from a foreign country and is not a citizen of India.
4. The petitioners, therefore, contend that such notification falls
foul of the Doctrine of Non -Retrogression since the right which was
being bestowed from the year 2005, instead of progressing and maturing
to be a better right was being curtailed and reversed. The petitioners
also contend that the right guaranteed under Articles 14 and 21 of the
Constitution of India is violated since such right is available to "any
person", even if one is not a citizen of India. In the instant facts, the
petitioners have no quarrel with the validity of Sections 7B(1), 7D, 8(1)
and 9(1) of Act, 1955. The petitioners while accepting the sovereign
power of the respondents, are only aggrieved by the manner in which
the impugned notification dated 04.03.2021 is issued, by which an existing
right has been taken away. The petitioners thus contend that they are
not only OCI Cardholders, but are resident OCI Cardholders and therefore
they should be treated like any other Citizen of India. Since respondent
No.1 through the impugned notification has disentitled the OCI
Cardholders from the process of admission to the seats to which the
Indian citizens are entitled to participate in the selection process, they
have approached this court assailing the impugned notification dated
04.03.2021, in these petitions under Article 32 of the Constitution of
India.
5. The petitioners have accordingly sought for issue of an
appropriate writ to quash clause 4(ii), its proviso and Explanation (1) as
contained in the impugned notification dated 04.03.2021 bearing F
No.2611/CC/05/2018-OCI.
6. The respondent No.1 has filed its objection statement seeking
to justify the notification. It is necessary to take note herein that though
in the instant batch of the petitions, the validity of the provisions in the
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Citizenship Act has not been assailed, in an another petition bearing
W.P.(C) No.1397 of 2020 since there is a challenge to the said provisions
and was earlier tagged with these petitions, the respondents in the common
counter affidavit have also referred to the provisions of the Act and the
Constitution of India in order to justify its validity. Since those aspects do
not require consideration in this batch of cases, the objections by
respondent No.1 insofar as seeking to justify the issue of the impugned
notification dated 04.03.2021 alone is taken note. In that regard, it is
contended that as per the notification dated 11.04.2005, the OCI
Cardholders were given parity with NRIs in the educational field. Under
the notification dated 05.01.2009, the OCI Cardholder students were
entitled to appear for All India Pre Medical Test and such other tests to
make them eligible for admission. It is averred that a harmonious reading
of 2005 and 2009 notifications leads to the conclusion that the OCI
Cardholder students have parity to the NRIs and therefore can lay claim
only to NRI quota seats. The educational right of OCI Cardholder students
were discussed in a meeting of the Committee of Secretaries held on
19.07.2018 wherein it was agreed that the OCI Cardholders may be
treated at par with NRI, in the quota of NRI and they ought not to be
eligible against seats meant for Indian citizens. Hence, it was felt that
relevant notifications be issued by the Ministry of Home Affairs. In that
view, the consolidated notification dated 04.03.2021 was issued in exercise
of the power under Section 7B(1) of Act, 1955 whereby the earlier
notifications of 2005, 2007 and 2009 were incorporated so as to bring
clarity with regard to the various provisions. It is contended that the
rationale is to protect the rights of the Indian Citizens and in such matters,
State may give preference to its citizens vis-à-vis foreigners holding
OCI Cards. In that regard it is stated that the number of seats available
for medical and engineering courses in India are very limited and does
not fully cater to the requirement of the Indian citizens. Hence the right
to admission to such seats should be primarily available to Indian citizens
instead of foreigners including OCI Cardholders. It is contended that the
right to claim the protection under Article 14, 19 and 21 of the Constitution
are not available to a person who is not a citizen, more particularly in
matters of education and is limited to the privilege bestowed through a
notification issued under the Act. The respondent No.1 therefore seeks
to justify and sustain the notification dated 04.03.2021, a portion of which
is under challenge.
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7. In the light of the above we have heard Mr. P. Chidambaram
and Mr. K.V. Viswanathan learned senior counsels for the respective
petitioners as also Mr. Kunal Cheema and the other learned counsels
appearing for the respective petitioners. We have also heard Ms.
Aishwarya Bhati, learned Additional Solicitor General for the respondents.
In that light, we have perused the petition papers and all the documents
made available to us.
8. The summary of the arguments on behalf of the petitioners is
as hereunder;
This Court vide order dated 8.11.2021 in WP 1397 of 2020 passed
a general order applicable to all eligible candidates who are similarly
situated to appear for counselling in General at par with Indian
citizens and same was made applicable to a variety of courses
stated therein.
Many of the Petitioners in WP No.891 of 2021, who were all
NEET-2021 aspirants, appeared for NEET 2021 and also qualified
and have secured admissions and are pursuing their academic
courses. They would be in their 2nd year of studies. There would
be other OCIs also who are not part of the writ petitions, but
would have taken the benefit of the order dated 08.11.2021 passed
by this Hon'ble Court, which was a general order applicable to
all.
The OCIs have been equated with NRIs all along since 2005 as
regards various rights conferred under
Section 7B(1) of the Citizenship Act and more particularly rights
regarding education. That vide notification dated 05.01.2009, OCIs
were permitted to carry out various professions in India as
enumerated therein.
That in view of the various rights having been given and more
particularly education rights and right to work in India and also
because many OCIs have their grandparents/families/roots in
India, they came back to India long back and have been residing
and working here and contributing to the nation like any other
citizen in the form of taxes etc. The span of living here ranges as
long as about 16 to 17 years.
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That till up to 04.03.2021 (impugned notification), OCIs were
entitled to seek admission to all seats like NRIs were (who are
still entitled to) and not restricted to only NRI seats or
supernumerary seats, but pursuant to the said portion of the
impugned notification, OCIs are now entitled to only seats reserved
for NRI i.e. NRI seats or supernumerary seats, which is
discriminatory and violative of Article 14 and 21 of the Constitution
of India.
Article 14 prohibits class legislation, but permits reasonable
classification. However, for reasonable classification to be valid,
there are twin tests i.e. (i) classification must be founded on
intelligible differentia and (ii) that the differentia must have a rational
relation to the object sought to be achieved. The seats have
remained, unfilled. Hence Indian Citizens are not prejudiced.
That Article 14 and 21 are available to "persons" and not only
citizens and hence the OCIs who are "persons" and who have
been residing in India for years together, in view of the rights of
living (since life long visa is granted) and undertaking various
professions in India granted under section 7B vide 05.01.2009
notification, have a right not to be discriminated against, which is
guaranteed under Article 14 and also have a right of meaningful
existence, which is a facet of Article 21 of the Constitution of
India. Moreover, there is no valid rationale for having withdrawn
the said rights of being entitled to various seats other than seats
reserved for NRIs, which they have been enjoying for considerable
amount of time at par with NRIs, who today (notification dated
12.10.2022) also are entitled to all seats including seats reserved
for Non-Residents.
It is further contended that the only object as can be culled out
from the Counter Affidavit of the Respondent no.1 appears to be
to protect rights of Indian citizens as seats are limited. However,
if the statistics of past few years i.e 2018-2019 onwards are seen,
even when the OCIs were entitled to all seats and they took
admissions then, few hundred seats were remaining vacant at the
end of final counselling. In fact the data also shows that seats
have been significantly increased year on year, yet at the end of
final counseling seats have remained vacant. Hence, it is clear
that the said objective is a misnomer and the said portion of the
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impugned notification smacks of arbitrariness and non-application
of mind.
The said portion of the impugned notification falls foul of the
doctrine of "non-retrogression" as discussed in the matter of
Navtej Singh Johar [2018 (10) SCC 1], as it is resulting in
withdrawal of the rights which the OCIs have enjoyed for the
past several years.
OCIs have taken up particular stream of education, passing 10th
and 12th from schools in same state, meeting domicile/residence
requirements, keeping in mind the rights which were available to
them and hence their such acts would be saved as "things done"
as per the words "except as respect things done or omitted to be
done before such supersession" appearing in impugned notification
dtd 04.03.2021. In support of this submission, reliance was placed
on Universal Import Agency and Anr. v. The Chief Controller
of Imports and Exports and Ors. [1961 (1) SCR 305]
The OCIs were entitled to have "legitimate expectation" as
enshrined in the case of Navjyoti [1992 (4) SCC 477] that the
said rights will continue to be available to them and not retrograded.
That only a limited number of OCIs take the exam and out of
them only a minuscule number clear the same and become eligible
for admission. Hence no grave prejudice was being caused if the
OCIs were allowed to seek admission to all seats based on merit
and withdrawal of the same is therefore arbitrary and
unreasonable.
9. The summary of the contention on behalf of the respondents as
put forth by the learned Additional Solicitor General is as follows;
The present case essentially raises a singular issue with regard to
the classification made between Indian citizens and Overseas Citizens
of India cardholders and the same being statutory, whether it is sustainable.
It is contended that the classification made by the impugned notification
is supported by statutory provisions which legitimizes the State's interest
and ensures that the limited number of seats in educational institutions
are available to Indian citizens and not taken away by foreigners. It is
contended that for any sovereign country, the rights and privileges that
are extended to the non-citizens are in exercise of inviolable sovereign
powers and are essentially unfettered and unqualified. The courts have
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consistently declined to interfere in visa, immigration or such issues relating
to foreigners. The power of exclusion of foreigners being an incident of
sovereignty is that of the Government to be exercised. The OCI regime
is a privilege extended by the Parliament and the Executive, falling
squarely in the domain of the sovereign policy of the country. The
Citizenship is regulated in Part II (Articles 5 to 11) of the Constitution of
India pursuant to which the Citizenship Act is enacted to regulate the
same. Section 2(ee) of the Citizenship Act defines OCI cardholders to
mean a person registered as an Overseas Citizens of India cardholder
by the Central Government under Section 7A of the Act. The learned
Additional Solicitor General on referring to the said constitutional provisions
and the Citizenship Act would point out that the privilege of securing
education in India was pursuant to the conferment of the same in terms
of Section 7(B) of the Act by the issue of notification.
10. The Notification dated 04.03.2021 which is impugned in these
petitions is issued by the Ministry in continuation of the policy of the
Union of India in conformity with the constitutional principles. With
reference to the Notification, it is contended that it is very evident and
clear that the intention was not to give the OCI cardholders parity with
Indian citizens at any stage with regard to admission but the parity was
always with NRIs. The policy was consistent from 2004 when the OCI
cardholders' mechanism was started, to treat them at par with the NRIs.
However, there was some dichotomy in the interpretation of the earlier
Notifications and the benefit which was available to the NRIs for the
seats along with Indian citizen students was also being extended.
Therefore, after comprehensive consultation on the educational rights
of the OCI cardholders in the meeting held on 19.07.2018 it was decided
that the OCI cardholders may be treated at par with NRIs in the quota
for NRI seats and they would not be eligible against the seats meant for
Indian citizens.
11. Hence the issue of the consolidated Notification of 04.03.2021
was in supersession of earlier Notifications of 2005, 2007, and 2009 to
bring clarity with regard to various provisions which were under
consideration of the Ministry of Home Affairs for quite some time.