REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL/APPELLATE JURISDICTION WRIT PETITION (C) NO.891 OF 2021 Anushka Rengunthwar & Ors.
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 NEET-UG exam so as to compete to secure a seat to pursue the medical course. 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. 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. 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. 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. Hence the right to admission to such seats should be primarily available to Indian citizens instead of foreigners including OCI Cardholders. 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. 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.
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. 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. [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. 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. 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. The Additional learned 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. 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. Reference to the judgments cited by the learned Additional Solicitor General to substantiate her contention that the consideration with regard to the validity of the Notification cannot be of a similar purport when it is assailed by the citizens of India and other decisions referred to would be considered at the appropriate stage. However, the grievance is only that a right which existed in their favour has been altered to their detriment without application of mind to the fact that most of the petitioners have spent their entire lifetime in India and also pursued their educational careers in India including appearing for the qualifying exam. Registration of overseas citizens of India Cardholder.-(1)
The Central Government may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, register as an Overseas Citizen of India Cardholder- (a) any person of full age and capacity,- (i) who is citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the Constitution; or (ii) who is citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or (iii) who is citizen of another country, but belonged to a territory that became part of India after the 15th day of August, 1947; or (iv) who is a child or a grandchild or a great grandchild of such a citizen; or (b) a person, who is a minor child of a person mentioned in clause (a); or (c) a person, who is a minor child, and whose both parents are citizens of India or one of the parents is a citizen of India; or (d) spouse of foreign origin of citizen of India or spouse of foreign origin of an Overseas Citizen of The Central Government may, by notification in the Official Gazette, specify the date from which the existing Persons of Indian Origin Cardholders shall be deemed to be Overseas Citizens of Indian Cardholders. (2) An Overseas Citizen of India Cardholder shall not be entitled to the rights conferred on a citizen of India- (a) under article 16 of the Constitution with regard to equality of opportunity in matters of public employment; (b) under article 58 of the Constitution for election as President: (c) under article 66 of the Constitution for election of Vice-President; (d) under article 124 of the Constitution for appointment as a Judge of the Supreme Court; (e) under article 217 of the Constitution for appointment as a Judge of the High Court; (f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter; (g) under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be; (h) under sections 5, 5A and 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or the Legislative Council, as the case may be, of a State; (i) for appointment to public services and 542(E)- In exercise of the powers conferred by Sub-section (1) of Section 7B of the Citizenship Act, 1955 (57 of 1955), the Central Government hereby specifies the following rights to which the persons registered as Overseas Citizens of India under Section 7A of the said Act shall be entitled, namely:- (a) grant of multiple entry lifelong visa for visiting India for any purpose; (b) exemption from registration with Foreign Regional Officer or Foreign Registration Officer for any length of stay in India; and (c) parity with Non-Resident Indians in respect of all facilities available to them in economic, financial and educational fields except in matters relating to the acquisition of agricultural or plantation properties. By a subsequent notification dated 05.01.2007 issued under Section 7B(1) of Act, 1955, though no right relating to the field of education was referred to, the OCI Cardholders were given similar treatment with Non-Resident Indians in the matter of inter-country adoption of Indian children and also to be treated at par with the Indian Nationals in the matter of tariffs in air fares and also for same entry fee being charged to domestic Indian visitors to visit National Parks and Wildlife Sanctuaries.
In exercise of the powers conferred by sub- section (1) of Section 7B of the Citizenship Act, 1955 (57 of 1955), and in continuation of the notifications of the Government of India in the Ministry of Home Affairs number S.O.542(E), dated the 11 April, 2005 and in the Ministry of Overseas Affairs S.O.12(E), dated the 6 January, 2007, the Central Government hereby specifies the following rights to which the persons registered as the overseas citizen of India under Section 7A of the said Act, shall be entitled, namely :- (a) Parity with non-resident Indian in respect of, – (i) Entry fees to be charged for visiting the national monuments, historical sites and museums in India; (ii) Pursuing the following professions in India, in pursuance of the provisions contained in the relevant act, namely:- (i) Doctors, dentists, nurses and pharmacists; (ii) Advocates; (iii) Architects; (iv) Chartered accountants; (b)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. A cumulative perusal of the three notifications of 2005, 2007 and 2009 heavily relied on by the learned senior counsel for the petitioners would certainly indicate that from the stage of amendment to Act, 1955 through Section 7A to 7D thereof and the notifications issued pursuant thereto, conferring rights under Section 7B(1) and such right being expanded from stage to stage, it would indicate that based on the need, progression was made in conferring better right to the Overseas Citizens of India who, except for the incident of their birth in a foreign country were in all other respects similarly placed as that of Indian citizens and the limited foreign affiliation of NRI and OCI Cardholders made them to be compared with each other for parity.
36(E), dated the 5 January, 2009, except as respect things done or omitted to be done before such supersession, the Central Government hereby specifies the following rights to which an Overseas Citizen of India Cardholder (hereinafter referred to as the OCI cardholder) shall be entitled, with effect from the date of publication of this notification in the Official Gazette, namely:- (1) grant of multiple entry lifelong visa for visiting India for any purpose Provided that for undertaking the following activities, the OCI cardholder shall be required to obtain a special permission or a Special Permit, as the case may be, from the competent authority or the Foreigners Regional Registration Officer or the Indian Mission concerned, namely:- (i) to undertake research; (ii) to undertake any Missionary or Tabligh or Mountaineering or Journalistic activities; (iii) to undertake internship in any foreign Diplomatic Missions or foreign Government organisations in India or to take up employment in any foreign Diplomatic Missions in India; (iv) to visit any place which falls within the Protected or Restricted or prohibited areas as notified by the Central Government or competent authority; (2) exemption from registration with the Foreigners Regional Registration Officer or Foreigners Registration Officer for any length of stay in India: Provided that the OCI cardholders who are normally resident in India shall intimate the jurisdictional Foreigners Regional Registration Officer or the Foreigners Registration Officer by email whenever there is a change in permanent residential address and in their occupation; (3) parity with Indian nationals in the matter of,- (i) tariffs in air fares in domestic sectors in India; and (ii) entry fees to be charged for visiting national parks, wildlife sanctuaries, the national monuments, historical sites and museums in India; (4) parity with Non-Resident Indians in the Matter of,- (i) inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption; (ii) appearing for the (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 fulfills the “Non-Resident Indian” status as per the Income Tax Act, 1961 (43 of 1961).
It is relevant to take note herein that the Non-Resident Indians apart from the seats reserved only for Non-Resident Indians, are also entitled to participate in the selection process for allotment of seats along with the Indian citizens for the remaining seats as well, which benefit was hitherto available to OCI Cardholders by virtue of their parity with NRIs. However, by presently specifying that the OCI Cardholders would be eligible for only the Non-Resident Indian seat or any supernumerary seat, the right available to the OCI Cardholders is only for the seats which are reserved as NRI quota seats, for which they would have to compete with the NRI candidates for the limited number of seats, for which higher fee structure is also fixed.
It is in that view contended that a legitimate expectation of the petitioners herein is being defeated and they are also being discriminated upon due to which there is a violation of Article 14 of the Constitution. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied.” On the contention relating to the doctrine of non- retrogression the decision in Navtej Singh Johar & Ors. The doctrine of progressive realisation of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. Consumer Education and Research Centre was relied on to contend that every activity of public authority must be informed by reasons and guided by public interest and the exercise of discretion or power by public authority must be judged by that standard. Whatever be the activity of the public authority, it must meet the test of Article 14 and judicial review strikes an arbitrary action. The doctrine of classification is only a subsidiary rule evolved by the courts to give practical content to the doctrine of equality, overemphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution. What were the “things done” by the petitioners under the Pondicherry law? The petitioners in the course of their import trade, having obtained authorization for the foreign exchange through their bankers, entered into firm contracts with foreign dealers on C.I.F. Under the terms of the contracts the sellers had to ship the goods from various foreign ports and the buyers were to have physical delivery of the goods after they had crossed the customs barrier in India. the contracts whereunder the goods have been imported and received by the buyer before the merger, no further protection is necessary as ordinarily no question of enforcement of the contracts under the pre-existing law would arise. Before the notice had expired these Acts were repealed by the Public Health Act, 1875, which contained a saving of “anything duly done” under the repealed enactments, and gave power to make a similar rate upon giving a similar notice. On that principle the court of appeal held that the rate which was the effect of the notice was good.” The learned senior counsel, further on the principle of legitimate expectation, relied on the decision in (1992) 4 SCC 477 Navjyoti Coop.Group Housing Society and Ors. Even assuming that in the absence of any explanation of the expression “first come first served” in Rule 6( vi ) of Nazul Rules there was no statutory requirement to make allotment with reference to date of registration, it has been rightly held, as a matter of fact, by the High Court that prior to the new guideline contained in the memo of January 20, 1990 the principle for allotment had always been on the basis of date of registration and not the date of approval of the list of members.
In a case of ‘legitimate expectation’ if the authority proposes to defeat a person’s ‘legitimate expectation’ it should afford him an opportunity to make representations in the matter. Within the conspectus of fair dealing in case of ‘legitimate expectation’, the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in. On the contrary, Mr Jaitley the learned counsel has submitted that the DDA and/or Central Government do not intend to challenge the decision of the High Court and the impugned memorandum of January 20, 1990 has since been withdrawn. That, any inquiry into its vires must be confined to the grounds on which plenary legislation may be questioned, to the grounds that it is contrary to the statute under which it is made, to the grounds that it is contrary to other statutory provisions or on the ground that it is so patently arbitrary that it cannot be said to be in conformity with the statute. Subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned. Aishwarya Bhati, learned Additional Solicitor General, in seeking to distinguish the above-referred decisions contended that the cases referred to by the learned senior counsel for the petitioner are all in the context of the issues which had arisen in matters relating to Citizens of India against the State/Authorities or when the dispute arose for consideration inter se between the Citizens of India. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. It may prima facie sound somewhat surprising, but it is nevertheless true, that though the citizens of India are guaranteed the fundamental rights specified in Article 19 of the Constitution, the status of citizenship on which the existence or continuance of the said rights rests is itself not one of the fundamental rights guaranteed to anyone.
If the basic status of citizenship is validly terminated by a Parliamentary statute, the person whose citizenship is terminated has no right to claim the fundamental rights under Article 19. As soon as this plea is raised, it is met by the obvious answer that the appellant has been deprived of its property by authority of the provisions of the Act and that would be the end of the plea under Article 31(1) unless the appellant is able to take the further step of challenging the validity of the act, and that necessarily imports Article 19(1)( f ). It may be that if Section 52-A contravenes Article 19(1)( f ), a citizen of India may contend that his vessel cannot be confiscated even if it has contravened Section 52-A, and in that sense, there would be inequality between the citizen and the foreigner, but that inequality is the necessary consequence of the basic fact that Article 19 is confined to citizens of India, and so, the plea that Article 14 is contravened also must take in Article 19 if it has to succeed.
The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)( e ), which is applicable only to the citizens of this country.” As such Articles 19(1)( d ) and ( e ) are unavailable to foreigners because those rights are conferred only on the citizens. The right to expel is conferred by Section 3(2) ( c ) of the Foreigners Act, 1946 on the Central Government and the right to enforce an order of expulsion and also to prevent any breach of it, and the right to use such force as may be reasonably necessary “for the effective exercise of such power” is conferred by Section 11(1), also on the Central Government. Therefore, the right to make arrangements for an expulsion includes the right to make arrangements for preventing any evasion or breach of the order, and the Preventive Detention Act confers the power to use the means of preventive detention as one of the methods of achieving this end. In order to appreciate this contention, it is necessary to state shortly the scope of Article 14 of the Constitution. This power, no doubt, in some degree is likely to produce some inequality; but if a law deals with the liberties of a number of well- defined classes, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. State of Bombay [(1952) 3 SCR 710] and Qasim Razvi v. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, ( i ) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and ( ii ) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise between persons governed by different conditions and different sets of circumstances. Chairman, Central Board of Directors to contend that when a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by the Court is not whether it has resulted in inequality but whether there is some differentia which bears a just and reasonable relation to the object of Legislation.
In the instant facts, the said observation cannot be of any assistance to the petitioners since the right though had been conferred earlier, such rights, insofar as the petitioners are concerned only a statutory right as they are admittedly not citizens of this country. Insofar as the remaining decisions relied on by the petitioners as also the learned Additional Solicitor General, a cumulative perusal of the same would indicate that though this court has asserted with regard to the legitimate expectation, right not to be discriminated keeping in view Article 14 of the Constitution etc., they are all essentially in the context while dealing with the rights of a citizen against the State or in a situation where a dispute was between a citizen against another citizen of this country and in that regard when the constitutional principles were invoked. Further, the decisions relied on by the learned Additional Solicitor General would indicate that this Court while considering the right claimed by a foreigner or who is not a citizen of this country has dealt with the matter differently and declined to interfere and grant any relief. Therefore, with the said understanding on the aspect of the applicability of the said decisions concluded as above, in the facts and circumstances arising in the instant case and the issue which is to be taken note and answered by us, the matter requires further consideration. These were cases where though the umbilical cord with the biological mother had snapped in a foreign country, the umbilical connections with the country continue to remain intact as the entire family including the grandparents would be in India and the parents were Indian citizens in most cases. In that regard, in a concept where the ‘dual citizenship’ was not recognised, such persons as like that of the petitioners were considered as Overseas Citizens of India card holders as defined under Section 2(ee) of 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. The above 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.
Hence keeping this situation in the backdrop, the manner in which the impugned notification would affect the petitioners and the similarly placed citizens will have to be taken note to examine whether the withdrawal of the conferred right will be justified. To the extent as noticed, the right being conferred under Section 7B(1) of Act 1955 through the impugned notification dated 04.03.2021 if it was for the first time conferring such right, the petitioners could not have made any grievance. However, a closer perusal of the said notification which has been extracted above in the course of this judgment would indicate that clause 4(ii) of the notification though provides the right to appear for the All India Entrance Test, which was hitherto available to make them eligible for admission in parity with Non- Resident Indians has now restricted the eligibility for admission only against the seats which are reserved for Non-Resident Indians.
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. Article 14 of the Constitution can be invoked and contend discrimination only when persons similarly placed are 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 examine this aspect, in addition to the contentions urged by the learned Additional Solicitor General we have also taken note of the objection statement filed with the writ petition. The further contention insofar as equating the OCI Cardholders to compete only for the seats which are reserved for NRIs and to exclude the OCI Cardholders for admission against any seat reserved exclusively for the Indian citizens, across the board, even to the persons who were bestowed the right earlier, it is stated that the rationale is to protect the rights of the Indian citizens in such matters where State may give preference to its citizens vis–vis foreigners holding OCI Cards. Per contra, the learned senior counsel for the petitioners has placed reliance on the statement made by the Hon’ble Minister in reply to the question raised in the Rajya Sabha as recent as on 13.12.2022, and an extract to indicate the details is produced along with I.A.
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. To demonstrate this aspect we shall take the details of the first petitioner in W.P.(C) No.891 of 2021 as an instance to demonstrate the case in point. As on the year of birth in 2003 the Citizenship Amendment Act, 2003 was brought in to introduce Section 7A of Act, 1955 w.e.f. If in that light, the details of the first petitioner taken note hereinabove 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. 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. 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.
Case Title: ANUSHKA RENGUNTHWAR Vs. UNION OF INDIA (2023 INSC 99)
Case Number: W.P.(C) No.-000891 / 2021
