CWP No. 18093 of 2009 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 18093 of 2009 Date of Decision: 18th March, 2010 Sorab Singh Gill ..Petitioner Versus Union of India and others ..Respondents CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL, CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. H.S.Mattewal, Sr. Advocate with Mr. Pavit Mattewal, Advocate for the petitioners. Mr. Anmol Rattan Sidhu, Assistant Solicitor General of India with Mr. O.S.Batalvi, Advocate and Ms. Geeta Singhwal, Central Govt. Standing Counsel for Union of India-respondents No.1 and 3. Mr. R.S.Bains, Advocate for respondent No.2. Mr. Lovkesh Sawhney, Advocate for respondent No.4. ***** MUKUL MUDGAL, C.J. The main issue involved in the writ petition is as to whether an Overseas Citizen of India (hereinafter referred to as an CWP No. 18093 of 2009 [2] 'OCI') is entitled to participate in international sports tournaments representing India. The petitioner's case is founded on the following factual background:- 2. The petitioner born in USA on 19th August, 1987 returned to India at the age of one year and was throughout educated in India. Presently, the petitioner is studying in the third year of the five-year law course at Panjab University, Chandigarh. The petitioner's father is serving as Director General of Police in the State of Punjab. 3. On 9.4.2007, the petitioner was granted OCI status by the Government of India. The petitioner has also represented India in the Skeet Event in 4th International tournament in Junior World Shooting Event at SUHL Germany, World University Games, Bangkok, Thailand and he had also been selected as a member of the Indian team for Asian championship. He secured two gold medals in 11th Asian Shooting Championship held at Kuwait in 2007 4. The petitioner's grievance is based on the interpretation of the policy dated 26.12.2008 and consequent policy dated 12.3.2009 formulated by the Union of India. The relevant portion of policy which is subject matter in dispute in the present petition arose pursuant to a judgment of Delhi High Court in Karm Kumar V. Union of India and others, dated 1.10.2008 in W.P.( C) No. 3049 of 2008. The relevant portion of the said judgment reads as follows:- “36. It is further noteworthy that learned counsel from both sides have conceded that the absence of a uniform policy qua eligibility of foreign nationals of Indian origin to represent India in national and international sports is the fountainhead of the disputes between the parties. The question, thus, arises as to whether, individuals Sports Federations, in the absence of any uniform sports policy, can be CWP No. 18093 of 2009 [3] allowed to “pick and choose” potential players for competitive sports?. The answer is an emphatic “no”. I am afraid that this is precisely what the impugned rule does- it makes an unnecessary classification between players who are Indians and players who are foreign nationals of Indian origin by first treating them alike. Having already treated the under-16 Indian and foreign nationals at parity with each other, the SRFI cannot subsequently make a distinction between the two on the basis of nationality. 37. For the reasons aforestated, the present petition is allowed in terms of Clause (a) of the prayer made by the petitioner. Consequently, the impugned rule restricting foreign nationals of Indian Origin from participating in the National Squash Championship is quashed. Taking into consideration the observations made by the Union of India at paragraph 6 of its short counter affidavit filed on record, wherein it is stated that there is no uniform policy followed by National Sport's Federations with respect to participation of foreign nations of Indian origin in Indian sports and further, that this being a policy issue, the respondents are reviewing the matter, a direction is hereby issued to the Government that such review, as contemplated by them, shall be done as expeditiously as possible and in the best interest of sports in the country.” 5. The impugned policy was formulated pursuant to the above judgment and reads as follow:- “ No. F.45-5/2008 SPI Government of India, Ministry of Youth Affairs & Sports, Department of Sports, Shastri Bhavan, New Delhi. Dated: 26.12.2008 To The President/Secretary General, Indian Olympic Association, B-29, Qutab Institutional Area, New Delhi. The President/Secretary Generals of All recognized National Sports Federations, Sir, In the matter of Karam Kumar V. Union of India and others, the Hon'ble High Court of Delhi has directed CWP No. 18093 of 2009 [4] Government to review the matter of participation of foreign nationals of Indian origin in the national teams and bring out a uniform national policy in the best interest of sports in the country. The matter has, in pursuance to the above direction of the Hon'ble High Court of Delhi, been carefully considered after seeking comments of Indian Olympic Association, recognized National Sports Federations and others concerned. Based on this consultation, an overwhelming view has emerged that the best interest of India Sports would be served by ensuring that players who are Indian citizens only represent the country in the National teams. This would ensure that the limited resources available are invested optimally in building world-class athletes. This would also provide the opportunity of giving international exposure and training to deserving local talent, which would further improve them to world class performance levels. Finally, it would serve the long term interests of the country to emerge as a front runner in the field of sports. In view of the above, it has been decided that, henceforth only players who are citizens of India would be entitled to receive government support for representing the country in the national teams. Further, the above policy decision would also be applicable in the consideration of proposals for the participation of the national teams in international sports events. Yours faithfully, Sd/- Shankar Lal, Under Secretary to Govt. of India.” 6. The petitioner is being denied participation in the said championship to represent India on the ground that instructions issued by the respondents are that only players who are Indian citizens can represent India. It has been contended that petitioner does not hold a Indian passport and therefore he is not an Indian citizen and thus not entitled to represent India in International Sports events. At this stage, it is necessary to state that the petitioner under an interim order dated 03.12.2009 of this Court was permitted to participate in trials of international sports events. CWP No. 18093 of 2009 [5] 7. The main plea of Mr. Mattewal, learned Senior Counsel for the petitioner is based on a reading of Sections 7-A and 7-B of the Citizenship Act, 1955 (hereinafter referred to as 'the Act'). Sections 7-A and 7-B of the aforesaid Act read as follow:- 7A. Registration of overseas citizens of India.- The Central Government may, subject to such conditions and restrictions as may be prescribed, on an application made in this behalf, register as an overseas citizen of India- (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 become part of India after the 15th day of August, 1947; or (iv) who is a child or a grand-child of such a citizen; or (b) a person, who is a minor child of a person mentioned in clause (a): Provided that no person, who is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, shall be eligible for registration as an overseas citizen of India. 7B. Conferment of rights on overseas citizens of India.- (1) Notwithstanding anything contained in any other law for the time being in force, an overseas citizen of India shall be entitled to such rights other than the rights specified under sub-section(2) as the Central Government may, by notification in the Official Gazette, specify in this behalf. (2) An overseas citizen of India 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; CWP No. 18093 of 2009 [6] (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 section 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 a Legislative Council, as the case may be, of a State; (i) for appointment to public services and posts in connection with the affairs of the Union or of any State except for appointment in such services and posts as the Central Government may by special order in that behalf specify. (3) Every notification issued under sub-section (1) shall be laid before each House of Parliament.” 8. Much stress has been laid on Section 7-B of the Act to contend that the rights of an OCI, such as the petitioner, are conferred under Section 7-B of the Act by a gazette notification. Learned counsel for the petitioner submitted that pursuant to the above power, a notification was issued on 11th April, 2005 which reads as follow:- THE GAZETTE OF INDIA EXTRAORDINARY PART-II SEC. 3(ii) MINISTRY OF HOME AFFAIRS NOTIFICATION NEW DELHI THE 11th April, 2005. S.O. 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 person 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 Registration 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.” (emphasis supplied). CWP No. 18093 of 2009 [7] 9. The other rights were conferred by a Notification dated 5th January, 2007 under Section 7-B of the Act and the relevant portion of the said notification reads as follow:- “MINISTRY OF OVERSEAS INDIAN AFFAIRS NOTIFICATION NEW DELHI, The 5TH JANUARY, 2007. S.O. 12(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 persons registered as Overseas Citizens of India under Section 7A of the said Act shall be entitled, with effect from the date of publication of this notification in the Official Gazette, namely:- 1. Registered Overseas Citizens of India shall be treated at par with Non-Resident Indians in the matter of inter-country adoption of Indian children. 2. Registered Overseas Citizens of India shall be treated at par with resident Indian nationals in the matter of tariffs in air fares in domestic sectors in India. 3. Registered Overseas Citizens of India shall be charged the same entry fee as domestic Indian visitors to visit national parks and wildlife sanctuaries in India.” 10. Further rights were conferred by a notification dated 5th January, 2009 under Section 7-B of the Act and the relevant portion of the said notification reads as follow:- “MINISTRY OF OVERSEAS INDIAN AFFAIRS NOTIFICATION NEW DELHI, The 5TH JANUARY, 2009. S.O. 36 (E)-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 11th April, 2005 and in the Ministry of Overseas Affairs S.O. 12(E) dated the 6th January, 2007, the Central Government hereby specifies the following rights to which 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- CWP No. 18093 of 2009 [8] 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 Acts, namely:- i) doctors, dentists, nurses and pharmacists; ii)advocates ; iii)architects; iv)chartered accountants; b) to appear for the All India Pre-Medical test for such other tests to make them eligible for admission in pursuance of the provisions contained in the relevant Acts. F. No. 01-15013/13/2008-DSJ D.N.SRIVASTAVA, JT.SECY. (emphasis supplied). 11. Learned counsel for the petitioner has submitted that notification dated 11.4.2005 granted the petitioner parity with non- resident Indians in respect of all the facilities available to them in economic, financial and educational fields and consequently since he is a student and education is a part of sport, he is entitled to exercise the same right as a NRI. 12. On the other hand, Mr. Sidhu, learned Assistant Solicitor General of India, submitted as follows:- a) That the policy does not stipulate that OCI can represent India as he is not an Indian citizen. At the out set, Mr. Sidhu also contended that it is not disputed that a NRI can represent India. He based his pleas on an interpretation of Article 9 of the Constitution of India which reads as under:- “9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens.— No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State” CWP No. 18093 of 2009 [9] b) He has also relied upon the provisions of Article 367(3) of the Constitution of India which defines a 'foreign State' which reads as under:- (3) For the purposes of Constitution' foreign State' means any State other than India; Provided that, subject to the provisions of any law made by Parliament, the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order.” c) He lastly submitted that since the petitioner does not hold a Indian Passport, he is not a citizen of India, therefore, cannot represent India as his case does not fall within the scope of the policy of the Government of India formulated on 26.12.2008. 13. In the light of the above rival pleas, we are required to consider the pleas raised by both parties. 14. The essence of the pleas of Mr. Mattewal was based on the definition of education given in a judgment of Delhi High Court in Ajay Jadeja V. Union of India and others, 95(2002) Delhi Law Times 14 and relevant paragraph No.21 of the judgment reads as under:- “21. In the instant case, not only is a violation of fundamental right complained of but the nature of the duty being discharged by the respondent is certainly a public duty dealing with an activity which is of widest general public interest and is in the furtherance of a sporting activity which is of importance to any civilised society. Infact modern education policies regards sports as an essential component of good education.” (emphasis supplied). 15. This view was also taken by the Hon'ble Supreme Court in Zee Telefilms Ltd. and Anr. V. Union of India (UOI) and Ors. (2005)4 SCC 649 and relevant para No. 63 of the judgment reads as follows:- CWP No. 18093 of 2009 [10] “ 63. The State by reason of a legislative action cannot confer on it extra territorial jurisdiction in relation to sports, entertainment etc. Education, however, is in Concurrent List being Item No. 25 of List-III. Sport is considered to be a part of Education (within its expanded meaning). Sport has been included in the Human Resource Development as a larger part of education. The Ministry of Youth Affairs and Sports was earlier a department of the Ministry of Human Resource Development. Now a separate Ministry of Youth Affairs and Sports has come into being, in terms of the Allocation of Business Rules.” 16. We may also refer to para No. 96 of the aforesaid judgment which reads as under:- “96. The expansion in the definition of State is not to be kept confined only to business activities of Union of India or other State Governments in terms of Article 298 of the Constitution of India but must also take within its fold any other activity which has a direct influence on the citizens. The expression “education” must be given a broader meaning having regard to Article 21-A of the Constitution of India as also Directive Principles of the State Policy. There is a need to look into the governing power subject to the fundamental constitutional limitations which requires an expansion of the concept of State action.” 17. In the light of the above position of law, it is the contention of learned counsel for the petitioner that the petitioner was at liberty to pursue the education on terms equivalent to that of an NRI. It was further submitted that it is not in dispute that an NRI could represent India in International Sports events, and that such sporting facility being part of education as held by Delhi High Court, as well as by the Hon'ble Supreme Court, could not be denied to the petitioner. 18. We are of the view that there is substance in the plea of learned counsel for the petitioner. From time immemorial schools have also included sports as part of education. All good schools have invariably included sports as part of education for the overall development of a student and it is, therefore, considered a necessary CWP No. 18093 of 2009 [11] ingredient of education. Those, talented in sports, have also got admission in the educational institutions on such basis thereby reflecting weightage to the performance in sports in the field of education. The University Grants Commission (UGC) through the medium of the National Policy on Education, 1986 lays emphasis on sports and physical education by the following provisions:- “8.20 Sports and physical education are an integral part of the learning process, and will be included in the evaluation of performance. A nation-wide infrastructure for physical education, sports and games will be built into the educational edifice. The infrastructure will consist of playfields, equipment, coaches, and teachers of physical education as part of the School Improvement Programme. Available open spaces in urban areas will be reserved for playgrounds, if necessary by legislation. Efforts will be made to establish sports institutions and hostels where specialized attention will be given to sports activities and sports related studies, alongwith normal education. Appropriate encouragement will be given to those talented in sports and games. Due stress will be laid on indigenous traditional games.” This also shows that even the UGC regards sports as an integral part of education. 19. Since an NRI is permitted to participate for India in sports events and facilities analogous to the NRIs, have been granted to the OCIs by a notification dated 11.4.2005, we are satisfied that the petitioner could not be denied such participation. 20. In so far as the plea of Mr. Sidhu based on Article 9 of the Constitution of India is concerned that relates to voluntary relinquishment by a citizen of India. This has to be understood in the context of Articles 5,6, 8 and 9 of the Constitution of India which read as follow:- CWP No. 18093 of 2009 [12] “5. Citizenship at the commencement of the Constitution:- At the commencement of this Constitution every person who has his domicile in the territory of India and- a) who was born in the territory of India; or b) either of whose parents was born in the territory of India; or c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.” 6. Rights of citizenship of certain persons who have migrated to India from Pakistan.—Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if— (a) he or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and (b)(i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or (ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government: Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application. “8. Rights of citizenship of certain persons of Indian origin residing outside India.— Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of CWP No. 18093 of 2009 [13] India or the Government of India.” 9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens.— No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.” 21. Quite apart from the fact that there was a historical context for enactment of aforesaid provisions of Articles 6 for acquiring citizenship of India. Article 9 relates to a consequence of voluntary acquisition of citizenship of a foreign state by a citizen of India. In the present case, there is no voluntary acquisition of of citizenship of the United States of America by the petitioner because the petitioner was