ANUSHKA RENGUNTHWAR & ORS versus UNION OF INDIA & ORS.
[2023] 5 S.C.R. 243, Supreme Court of India, 2023
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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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
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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; 291-
A-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][292-
F-G]
1.3 Article 14 of the Constitution can be invoked and
contend discrimination only when persons similarly placed are
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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 Pre-
Medical 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 Pre-
Medical 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
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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 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. 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 NEET-
UG 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 NEET-
UG 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. In
this context, consultations were held with all stakeholders and the
Notification was issued.
12. Reference to the judgments cited by the learned Additional
Solicitor General to substantiate her contention that the consideration
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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. The sum and
substance of the contention is that the decision is with the object of
legitimate public interest and in the interest of the Indian citizens. Hence,
it is contended that the impugned Notification does not call for interference
and the petitioners are not entitled to seek any relief from this Court.
13. In the light of rival contentions, at the threshold it is necessary
to take note that though the arguments were elaborately addressed and
the learned Additional Solicitor General referred in detail to the provisions
of the constitution relating to citizenship and also the sovereign power of
the respondent No.1 under the Act, 1955, we do not find it necessary to
dwell into much detail in this batch of petitions. This is for the reason
that from the very case put forth by the petitioners they are not questioning
the power of respondent No.1 to issue notifications prescribing the right
in respect of OCI Cardholders. 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. As such the
only grievance of the petitioners herein is with regard to the proviso to
clause 4(ii) and Explanation contained in the impugned notification dated
04.03.2021 whereunder a limitation has been prescribed wherein they
have been made entitled only to the seats available to NRIs and they
have been specifically excluded from seeking admission to the seats
which are exclusively available to the Indian citizens.
14. In that regard, the provisions of Act, 1955 which are to be
noted read as hereunder:-
“7A. 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
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(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 India Cardholder registered under
section 7A and whose marriage has been registered and subsisted
for a continuous period of not less than two years immediately
preceding the presentation of the application under this section:
Provided that for the eligibility for registration as an Overseas
Citizen of India Cardholder, such spouse shall be subjected to
prior security clearance by a competent authority in India:
Provided further that no person, who or either of whose
parents or grandparents or great grandparents 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
Cardholder under this sub-section.
2. 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.
Explanation.- For the purposes of this sub-section, “Persons
of Indian Origin Cardholders” means the persons registered as
such under notification number 26011/4/98 F.I., dated the 19th
August, 2002, issued by the Central Government in this regard.
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3. Notwithstanding anything contained in sub-section (1), the
Central Government may, if it is satisfied that special
circumstances exist, after recording the circumstances in writing,
register a person as an Overseas Citizen of India Cardholder.”
“7B. Conferment of rights on Overseas Citizen of India
Cardholder (1) Notwithstanding anything contained in any
other law for the time being in force, an Overseas Citizen
of India Cardholder 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 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 posts in connection with
the affairs of the Union or of any State except for appointment in
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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.”
(emphasis supplied)
15. The above-noted provisions were inserted initially during the
year 2004 and were thereafter substituted on the introduction of the
provisions in the year 2005 and substituted time to time thereafter. On
foreign citizens of such category being given the status of OCI
Cardholders, it also provided for conferment of rights on OCI Cardholders
as contemplated under Section 7B of Act, 1955 (supra).
16. In exercise of the said power under Section 7B(1) of Act,
1955 the notification dated 11.04.2005 was issued which provides as
hereunder:-
“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 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.
[F.No. 26011/2/2005-IC]
DURGA SHANKER MISHRA, Jt. Secy.”
(emphasis supplied)
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17. Through the said notification, apart from granting multiple entry
life-long visa for visiting India for any purpose, insofar as economic,
financial and educational fields, parity with Non-Resident Indians was
provided, except for 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.
18. Further, a notification dated 05.01.2009 relating to pursuing
professions and admission to professional course was issued, which reads
as hereunder:
“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 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;
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(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.
[F.No.OI-15013/13/2008-DS]
D.N. SRIVASTAVA, Jt. Secy.”
(emphasis supplied)
19. Through the said notification dated 05.01.2009 the OCI
Cardholders were given the right to pursue the professions
indicated therein, in India and also to appear for the All-Indian
Pre-Medical Test or such other tests to make them eligible for
admission in pursuance of the provisions contained in the relevant
Acts. Since NRIs had parity with the Indian Citizens in that regard, the
same benefit became extended to the OCI Cardholders including the
petitioners herein.
20. 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. In fact, for the purpose of air
fares and entry fee to places of interest, they were given parity
with Indian nationals. It is in that view contended that taking away
such a right that was available in the changing social scenario would
amount to retrogression when in fact better right should have been
conferred.
21. In that background, it would be necessary to refer to the
impugned notification dated 04.03.2021 which reads as hereunder:
ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA &
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“MINISTRY OF HOME AFFAIRS
NOTIFICATION
New Delhi, the 4th March, 2021
S.O. 1050(E) – In exercise of the powers conferred by sub-section
(1) of section 7B of the Citizenship Act, 1955 (57 of 1955) and in
supersession of the notification of the Government of India in the
Ministry of Home Affairs published in the Official Gazette vide
number S.O. 542(E), dated the 11th April, 2005 and the notifications
of the Government of India in the erstwhile Ministry of Overseas
Indian Affairs published in the Official Gazette vide numbers S.O.
12(E), dated the 5th January, 2007 and S.O. 36(E), dated the 5th
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;
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(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 all India entrance tests such
as National Eligibility cum Entrance Test, Joint
Entrance Examination (Mains), Joint Entrance
Examination (Advanced) or such other tests to
make them eligible for admission only against
any Non-Resident Indian seat or any
supernumerary seat;
Provided that the OCI cardholder shall not be
eligible for admission against any seat reserved
exclusively for Indian citizens.
(iii)
Purchase or sale of immovable properties other than
agricultural land or farm house or plantation property;
and
(iv)
Pursuing the following professions in India as
per the provisions contained in the applicable
relevant statutes or Acts as the case may be,
namely:-
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(a)
doctors, dentists, nurses and pharmacists;
(b)
advocates;
(c)
architects;
(d)
chartered accountants;
(5)
in respect of all other economic, financial and educational
fields not specified in this notification or the rights and
privileges not covered by the notifications made by the
Reserve Bank of India under the Foreign Exchange
Management Act, 1999 (42 of 1999), the OCI cardholder
shall have the same rights and privileges as a foreigner.
Explanation – For the purposes of this notification,-
(1)
The OCI Cardholder (including a PIO cardholder) is
a foreign national holding passport of a foreign country
and is not a citizen of India.
(2)
“Non-resident Indian” shall have the same meaning as
assigned to it in the Foreign Exchange Management
(Acquisition and Transfer of Immovable Property in India)
Regulations, 2018 made by the Reserve Bank of India
under the Foreign Exchange Management Act, 1999 (42 of
1999) and who fulfills the “Non-Resident Indian” status as
per the Income Tax Act, 1961 (43 of 1961).
[F.No.26011/CC/05/2018-OCI]
PRAMOD KUMAR,
Director”
(emphasis supplied)
22. A perusal of the notification dated 04.03.2021 would ex facie
indicate that the rights bestowed thereunder on the OCI Cardholders
are in fact a consolidation of the rights which had been bestowed through
the notification dated 11.04.2005, 05.01.2007 and 05.01.2009. However,
the impugned portion of the notification is the portion which has been
emphasised i.e. the proviso to clause 4(ii) and Explanation (1) thereto
and limiting the parity only to NRI seats and supernumerary seats. Through
the impugned portion of the notification, the parity which existed with
Non-Resident Indians including in the field of education has been modified
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to indicate their eligibility for admission only against any “Non-Resident
Indian seat” or any supernumerary seat. 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. The proviso thereto makes it clear that the OCI Cardholders
shall not be eligible for admission against any seat reserved exclusively
for Indian citizens. The provision contained in the impugned portion of
the notification dated 04.03.2021 would indicate that the OCI Cardholders
even if they have settled down in India and have undergone their entire
educational course in India but not having renounced the citizenship of a
foreign country and not having acquired the citizenship of India will now
be denied the opportunity of securing a medical seat in the general pool
of Indian citizens including NRIs and
will have to compete only for the
limited seats available under the NRI quota, which would be a denial of
an opportunity of education to such OCI Cardholders which was hitherto
available. 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.
23. In the above backdrop it would be appropriate to refer to the
precedents cited and relied upon by the learned counsel for all the parties
including the respondents.
24. In support of the case of the petitioners, Shri P. Chidambaram,
learned Senior Counsel placed reliance on the decision in (1978) 1 SCC
248 Maneka Gandhi vs. Union of India, to contend that unreasonable
classification is not permissible, wherein, inter alia, it is held as hereunder;
“7. Now, the question immediately arises as to what is the
requirement of Article 14 : what is the content and reach of the
great equalising principle enunciated in this article? There can be
no doubt that it is a founding faith of the Constitution. It is indeed
the pillar on which rests securely the foundation of our democratic
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republic. And, therefore, it must not be subjected to a narrow,
pedantic or lexicographic approach. No attempt should be made
to truncate its all-embracing scope and meaning, for to do so would
be to violate its activist magnitude. Equality is a dynamic concept
with many aspects and dimensions and it cannot be imprisoned
within traditional and doctrinaire limits. We must reiterate here
what was pointed out by the majority in E.P. Royappa v. State of
Tamil Nadu namely, that “from a positivistic point of view, equality
is antithetic to arbitrariness. In fact equality and arbitrariness are
sworn enemies; one belongs to the rule of law in a republic, while
the other, to the whim and caprice of an absolute monarch. Where
an act is arbitrary, it is implicit in it that it is unequal both according
to political logic and constitutional law and is therefore violative of
Article 14”. Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades Article
14 like a brooding omnipresence and the procedure contemplated
by Article 21 must answer the test of reasonableness in order to
be in conformity with Article 14. 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.”
25. On the contention relating to the doctrine of non-retrogression
the decision in Navtej Singh Johar & Ors. vs. Union of India Thr.
Secretary Ministry of Law and Justice (2018) 10 SCC 1 is relied
upon, wherein it is observed as hereunder:
“199. What the words of Lord Roskill suggest is that it is not only
the interpretation of the Constitution which needs to be pragmatic,
due to the dynamic nature of a Constitution, but also the legal
policy of a particular epoch must be in consonance with the current
and the present needs of the society, which are sensible in the
prevalent times and at the same time easy to apply.
200. This also gives birth to an equally important role of the State
to implement the constitutional rights effectively. And of course,
when we say State, it includes all the three organs, that is, the
legislature, the executive as well as the judiciary. The State has to
show concerned commitment which would result in concrete
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action. The State has an obligation to take appropriate measures
for the progressive realisation of economic, social and cultural
rights.
201. The doctrine of progressive realisation of rights, as a natural
corollary, gives birth to the doctrine of non-retrogression. As per
this doctrine, there must not be any regression of rights. In a
progressive and an ever-improving society, there is no place for
retreat. The society has to march ahead.
202. The doctrine of non-retrogression sets forth that the State
should not take measures or steps that deliberately lead to
retrogression on the enjoyment of rights either under the
Constitution or otherwise.”
26. The decision in (1995) 5 SCC 482 LIC Vs. 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. Para 24 and 30 of the decision relied
upon is as hereunder:
“24. In Dwarkadas Marfatia & Sons v. Board of Trustees of
the Port of Bombay [(1989) 3 SCC 293 : (1989) 2 SCR 751] it
was held that the Corporation must act in accordance with certain
constitutional conscience and whether they have so acted must
be discernible from the conduct of such Corporations. Every
activity of public authority must be informed by reasons and guided
by the public interest. All exercises of discretion or power by
public authority must be
judged by that standard. In that case
when the building owned by the port trust was exempted from the
Rent Act, on terminating the tenancy for development when
possession was sought to be taken, it was challenged under Article
226 that the action of the port trust was arbitrary and no public
interest would be served by terminating the tenancy. In that context,
this Court held that even in contractual relations the Court cannot
ignore that the public authority must have constitutional conscience
so that any interpretation put up must be to avoid arbitrary action,
lest the authority would be permitted to flourish as imperium in
imperio. Whatever be the activity of the public authority, it must
meet the test of Article 14 and judicial review strikes an arbitrary
action.
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30. The contention of the appellants is that the offending clause is
a valid classification. The salaried group of lives from the
Government, semi-Government or reputed commercial institutions
form a class. With a view to identify the health conditions, the
policy was applied to that class of lives. No mandamus would be
issued to declare the classification as unconstitutional when it bears
reasonable nexus to the object and there is intelligible differentia
between the salaried lives and the rest. The High Court, therefore,
was wrong in declaring the offending clause as arbitrary violating
Article 14. It is true that the appellant is entitled to issue the policy
applicable to a particular group or class of lives entitled to avail
contract of insurance with the appellant but a class or a group
does mean that the classification meets the demand of equality,
fairness and justness. 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. The overemphasis on classification
would inevitably result in substitution of the doctrine of classification
to the doctrine of equality and the Preamble
of the Constitution
which is an integral part and scheme of the Constitution. Maneka
Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC
248] ratio extricated it from this moribund and put its elasticity for
egalitarian path finder lest the classification would deny equality
to the larger segments of the society. The classification based on
employment in Government, semi-Government and reputed
commercial firms has the insidious and inevitable effect of
excluding lives in vast rural and urban areas engaged in unorganised
or self-employed sectors to have life insurance offending Article
14 of the Constitution and socio-economic justice.”
27. Shri K.V. Viswanathan, learned senior counsel while contending
that the right which had accrued cannot be taken away and the ‘things
done’ or ‘omitted to be done’ before such supersession is to be kept in
view, has relied on the decision in (1961) 1 SCR 305 Universal Imports
Agency & Ans. Vs. Chief Controller of Imports and Exports and
Ors. wherein it is held as hereunder:
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“16. 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. terms. In some cases irrevocable Letters of
Credit were opened and in others bank drafts were sent towards
the contracts. 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. Pursuant to the terms of the contracts,
the sellers placed the goods on board the various ships, some
before and others after the merger, and the goods arrived at
Pondicherry port after its merger with India. The prices for the
goods were paid in full to the foreign sellers and the goods were
taken delivery of by the buyers after examining them on arrival.
Before the merger if the Customs Authorities had imposed any
restrictions not authorised by law, the affected parties could have
enforced the free entry of the goods in a court of law. On the said
facts a short question arises whether para 6 of the Order protects
the petitioners. While learned counsel for the petitioners contends
that “things done” take in not only things done but also their legal
consequences, learned counsel for the State contends that, as the
goods were not brought into India before the merger, it
was not a
thing done before the merger and, therefore, would be governed
by the enactments specified in the Schedule. It is not necessary
to consider in this case whether the concept of import not only
takes in the factual bringing of goods into India, but also the entire
process of import commencing from the date of the application
for permission to import and ending with the crossing of the customs
barrier in India. The words “things done” in para 6 must be
reasonably interpreted and, if so interpreted, they can mean not
only things done but also the legal consequences flowing therefrom.
If the interpretation suggested by the learned counsel for the
respondents be accepted, the saving clause would become
unnecessary. If what it saves is only the executed contracts i.e.
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. The phraseology used is
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not an innovation but is copied from other statutory clauses. Section
6 of the General clauses Act (10 of 1897) says that unless a
different intention appears, the repeal of an Act shall not affect
anything duly done or suffered thereunder. So too, the Public Health
Act of 1858 (38 & 39 Vict. c. 55) which repealed the Public
Health Act of 1848 contained a proviso to Section 343 to the
effect that the repeal “shall not affect anything duly done or
suffered under the enactment hereby repealed”, This proviso came
under judicial scrutiny in Queen v. Justices of the West Riding
of Yorkshire [(1876) 1 QBD 220] . There notice was given by a
local board of health of intention to make a rate under the Public
Health Act, 1848, and amending Acts. 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. The board, in ignorance of the repeal, made
a rate purporting to be made under the repealed Acts. It was
contended that as the rate was made after the repealing Act, the
notice given under the repealed Act was not valid. The learned
Judges held that as the notice was given before the Act, the making
of the rate was also saved by the words “anything duly done”
under the repealed enactments. This case illustrates the point that
it is not necessary that an
impugned thing in itself should have
been done before the Act was repealed, but it would be enough if
it was integrally connected with and was a legal consequence of
a thing done before the said repeal. Under similar circumstances
Lindley, L.J., in Heston and Isleworth Urban District Council
v. Grout [(1897) 2 Ch 306] confirmed the validity of the rate
made pursuant to a notice issued prior to the repeal. Adverting to
the saving clause, the learned Judge tersely states the principle
thus at p. 313: “That to my mind preserves that notice and the
effect of it”. On that principle the court of appeal held that the
rate which was the effect of the notice was good.”
28. 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. Vs. Union of India & Ors.
wherein it is observed as hereunder:
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“15. It also appears to us that in any event the new policy decision
as contained in the impugned memorandum of January 20, 1990
should not have been implemented without making such change
in the existing criterion for allotment known to the Group Housing
Societies if necessary by way of a public notice so that they might
make proper representation to the concerned authorities for
consideration of their viewpoints. 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
the brochure issued in 1982 by the DDA even after Gazette
notification of Nazul Rules on September 26, 1981 the policy of
allotment on the basis of seniority in registration was clearly
indicated. In the aforesaid facts, the Group Housing Societies were
entitled to ‘legitimate expectation’ of following consistent past
practice in the matter of allotment, even though they may not
have any legal right in private law to receive such treatment. The
existence of ‘legitimate expectation’ may have a number of
different consequences and one of such consequences is
that the
authority ought not to act to defeat the ‘legitimate expectation’
without some overriding reason of public policy to justify its doing
so. 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. In this
connection reference may be made to the discussions on
‘legitimate expectation’ at page 151 of Volume 1(1) of Halsbury’s
Laws of England , 4th edn. (re-issue). We may also refer to a
decision of the House of Lords in Council of Civil Service Unions
v. Minister for the Civil Service [(1984) 3 All ER 935] . It has
been held in the said decision that an aggrieved person was entitled
to judicial review if he could show that a decision of the public
authority affected him of some benefit or advantage which in the
past he had been permitted to enjoy and which he legitimately
expected to be permitted to continue to enjoy either until he was
given reasons for withdrawal and the opportunity to comment on
such reasons.
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16. It may be indicated here that the doctrine of ‘legitimate
expectation’ imposes in essence a duty on public authority to act
fairly by taking into consideration all relevant factors relating to
such ‘legitimate expectation’. 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. We, have not been
shown any compelling reasons taken into consideration by the
Central Government to make a departure from the existing policy
of allotment with reference to seniority in registration by
introducing a new guideline. 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. We therefore feel that in the facts of the case it was
only desirable that before introducing or implementing any change
in the guideline for allotment, an opportunity to make
representations against the proposed change in the guideline should
have been given to the registered Group Housing Societies, if
necessary, by way of a public notice.”
29. On behalf of the petitioners the decision to explain the Doctrine
of Ultra Vires was also relied in (2007) 13 SCC 673 J.K. Industry Ltd.
vs. Union of India wherein it is held as
hereunder:
“127. At the outset, we may state that on account of globalisation
and socio-economic problems (including income disparities in our
economy) the power of delegation has become a constituent
element of legislative power as a whole. However, as held in
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of
India, SCC at p. 689, subordinate legislation does not carry the
same degree of immunity which is enjoyed by a statute passed by
a competent legislature. Subordinate legislation may be questioned
on any of the grounds on which plenary legislation is questioned.
In addition, it may also be questioned on the ground that it does
not conform to the statute under which it is made. It may further
be questioned on the ground that it is inconsistent with the
provisions of the Act or that it is contrary to some other statute
applicable on the same subject-matter. Therefore, it has to yield
to plenary legislation. It can also be questioned on the ground that
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it is manifestly arbitrary and unjust. 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. It can
also be challenged on the ground that it violates Article 14 of the
Constitution.
128. Subordinate legislation cannot be questioned on the ground
of violation of principles of natural justice on which administrative
action may be questioned. A distinction must, however, be made
between delegation of a legislative function in which case the
question of reasonableness cannot be gone into and the investment
by the statute to exercise a particular discretionary power. In the
latter case, the question may be considered on all grounds on
which administrative action may be questioned, such as, non-
application of mind, taking irrelevant matters into consideration,
failure to take relevant matters into consideration, etc. A
subordinate legislation may be struck down as arbitrary or contrary
to statute if it fails to take into account vital facts which expressly
or by necessary implication are required to be taken into account
by the statute or the Constitution. This can be done on the ground
that the subordinate legislation does not conform to the statutory
or
constitutional requirements or that it offends Article 14 or Article
19 of the Constitution. However, it may be noted that, a notification
issued under a section of the statute which requires it to be laid
before Parliament does not make any substantial difference as
regards the jurisdiction of the court to pronounce on its validity.”
30. Ms. 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. In that view, it is
contended that the petitioner cannot claim protection under Article 14,
19 or 21 of the Constitution of India. Even for claiming any right under
Article 14, the same will emerge from Article 19 of the Constitution and
as such protection cannot be accorded to foreigners.
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31. In addition, the learned Additional Solicitor General, to
emphasize that a policy decision in public interest cannot be interfered,
referred to the decision in (1998) 4 SCC 117 State of Punjab and Ors.
Vs. Ram Lubhaya Bagga & Ors.:
“25. Now we revert to the last submission, whether the new State
policy is justified in not reimbursing an employee, his full medical
expenses incurred on such treatment, if incurred in any hospital in
India not being a government hospital in Punjab. 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. So far as questioning the
validity of governmental policy is concerned in our view it is not
normally within the domain of any court, to weigh the pros and
cons of the policy or to scrutinize it and test the degree of its
beneficial or equitable disposition for the purpose of varying,
modifying or annulling it, based on howsoever sound and good
reasoning, except where it is arbitrary or violative of any
constitutional, statutory or any other provision of law. When
Government forms its policy, it is based on a number of
circumstances on facts, law including constraints based on its
resources. It is also based on expert opinion. 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. The court would
dissuade itself from entering into this realm which belongs to the
executive. It is within this matrix that it is to be seen whether the
new policy violates Article 21 when it restricts reimbursement on
account of its financial constraints.”
32. On the contention relating to the reasonable classification test
and a foreigner not having right, the following decisions are relied upon
by the learned Additional Solicitor General. They are;
(i)
AIR 1962 SC 1052 Izhar Ahmed Khan & Ors. vs. Union
of India.
“38. The next point to consider is about the validity of Section
9(2) itself. It is argued that this rule is ultra vires because it
affects the status of citizenship conferred on the petitioners
and recognised by the relevant articles of the Constitution,
and it is urged that by depriving the petitioners of the status
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of citizenship, their fundamental rights under Article 19
generally and particularly the right guaranteed by Article
19(1)(e) are affected. It is not easy to appreciate this
argument. As we have already observed, the scheme of
the relevant articles of Part II which deals with citizenship
clearly suggests that the status of citizenship can be
adversely affected by a statute made by the Parliament in
exercise of its legislative powers. 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 a law is properly passed by the
Parliament affecting the status of citizenship of any citizens
in the country, it can be no challenge to the validity of the
said law that it affects the fundamental rights of those whose
citizenship is thereby terminated. Article 19 proceeds on
the assumption that the person who claims the rights
guaranteed by it is a citizen of India. 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. Therefore,
in our opinion, the challenge to Section 9(2) on the ground
that it enables the rule-making authority to make a rule
to
deprive the citizenship rights of the petitioners cannot be
sustained.”
(ii)
AIR 1964 SC 1140 Indo-China Steam Navigation Co.Ltd.
vs. Jasjit Singh & Ors.
35. There is one more point which must be mentioned before
we part with this appeal. Mr Choudhary attempted to argue
that if mens rea was not regarded as an essential element
of Section 52-A, the said section would be ultra vires Articles
14, 19 and 31(1) and as such, unconstitutional and invalid.
We do not propose to consider the merits of this argument,
because the appellant is not only a company, but also a
foreign company, and as such, is not entitled to claim the
benefits of Article 19. It is only citizens of India who have
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been guaranteed the right to freedom enshrined in the said
article. If that is so, the plea under Article 31(1) as well as
under Article 14 cannot be sustained for the simple reason
that in supporting the said two pleas, inevitably the appellant
has for fall back upon the fundamental right guaranteed by
Article 19(1)(f). The whole argument is that the appellant
is deprived of its property by operation of the relevant
provisions of the Act and these provisions are invalid. All
that Article 31(1) provides is that no person shall be deprived
of his property save by authority of law. 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). Similarly, when a
plea is raised under Article 14, we face the same position.
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 plain truth is that certain rights guaranteed to the citizens
of India under Article 19 are not available to foreigners and
pleas which may successfully be raised by the citizens on
the strength of the said rights guaranteed under Article 19
would, therefore, not be available to foreigners. That being
so, we see no substance in the argument that if Section 52-
A is construed against the appellant, it would be invalid, and
so, the appellant would be able to resist the confiscation of
its vessel under Article 31(1). We ought to make it clear
that we are expressing no opinion on the validity of Section
52-A under Article 19(1)(f). If the said question were to
arise for our decision in any case, we would have to consider
whether the provisions of Section 52-A are not justified by
Article 19(5). That is a matter which is foreign to the enquiry
in the present appeal.
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(iii)
(1994) Supple 1 SCC 615 State of A.P. vs. Khudiram
Chakma
“75. It is true that fundamental right is available to a
foreigner as held in Louis De Raedt v. Union of India
[(1991) 3 SCC 554: 1991 SCC (Cri) 886] : (SCC p. 562,
para 13)
“The next point taken on behalf of the petitioners, that the
foreigners also enjoy some fundamental rights under the
Constitution of this country, is also of not much help to them.
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.
Certainly, the machinery of Article 14 cannot be invoked to
obtain that fundamental right. Rights under Articles 19(1)(d)
and (e) are expressly withheld to foreigners.”
(iv)
AIR 1955 SC 367 Hans Muller of Nurenburg Vs.
Superintendent, Presidency Jail, Calcutta & Ors.
“19. We do not agree and will first examine the position
where an order of expulsion is made before any steps to
enforce it are taken. 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. There is, therefore,
implicit in the right of expulsion a number of ancillary rights,
among them, the right to prevent any breach of the order
and the right to use force and to take effective measures to
carry out those purposes. Now the most effective method
of preventing a breach of the order and ensuring that it is
duly obeyed is by arresting and detaining the person ordered
to be expelled until proper arrangements for the expulsion
can be made. Therefore, the right to make arrangements
for an expulsion includes the right to make arrangements
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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. How far it is necessary to take this step
in a given case is a matter that must be left to the discretion
of the Government concerned, but, in any event, when
criminal charges for offences said to have been committed
in this country and abroad are levelled against a person, an
apprehension that he is likely to disappear and evade an
order of expulsion cannot be called either unfounded or
unreasonable. Detention in such circumstances is rightly
termed preventive and falls within the ambit of the
Preventive Detention Act and is reasonably related to the
purpose of the Act.
35.The Foreigners Act confers the power to expel foreigners
from India. It vests the Central Government with absolute
and unfettered discretion and, as there is no provision
fettering this discretion in the Constitution, an unrestricted
right to expel remains.
42.Our conclusion is that the Foreigners Act is not governed
by the provisions of the Extradition Act. The two are distinct
and neither impinges on the other. Even if there is a
requisition and a good case for extradition, Government is
not bound to accede to the request. It is given an unfettered
right to refuse. Section 3(1) of the Extradition Act says—
”the Central Government may, if it thinks fit”.
Therefore, if it chooses not to comply with the request, the
person against whom the request is made cannot insist that
it should. The right is not his; and the fact that a request has
been made does not fetter the discretion of Government to
choose the less cumbrous procedure of the Foreigners Act
when a foreigner is concerned, provided always, that in
that event the person concerned leaves India a free man.
If no choice had been left to the Government, the position
would have been different but as Government is given the
right to choose, no question of want of good faith can arise
merely because it exercises the right of choice which the
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law confers. This line of attack on the good faith of
Government falls to the ground.”
33. In order to contend that the classification made is valid, the
learned Additional Solicitor General has referred to the decision in;
(i)
AIR 1952 SC 75 State of W.B. Vs. Anwar Ali Sarkar as
hereunder:
“63. In order to appreciate this contention, it is necessary
to state shortly the scope of Article 14 of the Constitution.
It is designed to prevent any person or class of persons
from being singled out as a special subject for discriminatory
and hostile legislation. Democracy implies respect for the
elementary rights of man, however suspect or unworthy.
Equality of right is a principle of republicanism and Article
14 enunciates this equality principle in the administration of
justice. In its application to legal proceedings the Article
assures to everyone the same rules of evidence and modes
of procedure. In other words, the same rule must exist for
all in similar circumstances. This principle, however, does
not mean that every law must have universal application
for all persons who are not by nature, attainment or
circumstance, in the same position.
64. By the process of classification the State has the power
of determining who should be regarded as a class for
purposes of legislation and in relation to a law enacted on a
particular subject. 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. The classification
permissible, however, must be based on some real and
substantial distinction bearing a just and reasonable relation
to the objects sought to be attained and cannot be made
arbitrarily and without any substantial basis. Classification
thus means segregation in classes which have a systematic
relation, usually found in common properties and
characteristics. It postulates a rational basis and does not
mean herding together of certain persons and classes
arbitrarily. Thus the legislature may fix the age at which
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persons shall be deemed competent to contract between
themselves, but no one will claim that competency to
contract can be made to depend upon the stature or colour
of the hair. “Such a classification for such a purpose would
be arbitrary and a piece of legislative despotism”.
(ii)
(1955) 1 SCR 1045 Budhan Choudhary Vs. State of Bihar
“5. The provisions of Article 14 of the Constitution have
come up for discussion before this Court in a number of
cases, namely, Chiranjit Lal Chowdhuri v. Union of India
[(1950) 1 SCR 869] , State of Bombay v. F.N. Balsara
[(1951) 2 SCR 682] , State of West Bengal v. Anwar Ali
Sarkar [(1952) 3 SCR 284] , Kathi Raning Rawat v. State
of Saurashtra [(1952) 3 SCR 435] , Lachmandas
Kewalram Ahuja v. State of Bombay [(1952) 3 SCR 710]
and Qasim Razvi v. State of Hyderabad [AIR 1953 SC
156 : (1953) 4 SCR 581] and Habeeb Mohamad v. State
of Hyderabad [(1953) 4 SCR 661] . It is, therefore, not
necessary to enter upon any lengthy discussion as to the
meaning, scope and effect of the article in question. It is
now well established that while Article 14 forbids class
legislation, it does not forbid reasonable classification for
the purposes of legislation. 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 classification may be founded on different bases;
namely, geographical, or according to objects or occupations
or the like. What is necessary is that there must be a nexus
between the basis of classification and the object of the
Act under consideration. It is also well established by the
decisions of this Court that Article 14 condemns
discrimination not only by a substantive law but also by a
law of procedure. The contention now put forward as to
the invalidity of the trial of the appellants has, therefore to
be tested in the light of the principles so laid down in the
decisions of this Court.
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(iii)
(1976) 2 SCC 310 State of Kerala Vs. N.M. Thomas
“31. The rule of parity is the equal treatment of equals in
equal circumstances. The rule of differentiation is enacting
laws differentiating between different persons or things in
different circumstances. 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. The principle of equality
does not mean that every law must have universal application
for all persons who are not by nature, attainment or
circumstances in the same position and the varying needs
of different classes of persons require special treatment.
The legislature understands and appreciates the need of its
own people, that its laws are directed to problems made
manifest by experience and that its discriminations are based
upon adequate grounds. The rule of classification is not a
natural and logical corollary of the rule of equality, but the
rule of differentiation is inherent in the concept of equality.
Equality means parity of treatment under parity of
conditions. Equality does not connote absolute equality. A
classification in order to be constitutional must rest upon
distinctions that are substantial and not merely illusory. The
test is whether it has a reasonable basis free from artificiality
and
arbitrariness embracing all and omitting none naturally
falling into that category.”
34. The learned Additional Solicitor General has also referred to
the decision in (2001) 2 SCC 259 K. Thimmappa Vs. 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. Mere
differentiation does not per se amount to discrimination within the
inhibition of the equal protection clause.
35. Having noted the above, at the outset, insofar as the decision
relied on by the learned senior counsel for the petitioner in the case of
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Navtej Singh Johar & Ors. (supra), though the Doctrine of Progressive
Realisation of Rights is referred and has been stated that there must
not be any regression of rights and in a progressive and an ever-improving
society there is no place for retreat, the society has to march ahead that
the state should not take measures or steps that deliberately lead to
retrogression on the enjoyment of rights either under the constitution or
otherwise, we are of the opinion that the said observation would depend
on the nature of the rights regarding which a consideration is made in
appropriate cases. 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. Though
certain rights under the statute were given, the state has a duty to balance
the interests of its citizens and the non-citizens when a change is required
to be made. However as to whether such consideration has been made
in a just and proper manner with reference to all aspects is another
aspect which we will advert to in the course of this judgment, but to
contend that it amounts to retrogression may not arise in the present
context.
36. 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. If in that
light, the matter is looked into, when there is no dispute to the fact that
the petitioners answer the definition of “foreigners” as defined under
the Foreigners Act, the said decisions relied upon by the learned senior
counsel for the petitioner would not apply on all fours. But keeping in
view the nature of right claimed by the petitioners as OCI Cardholders
which is a status accorded despite being foreigners and the background
circumstance which led to the situation the spirit of the principles laid
will have to be borne in mind while making further consideration since
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the principles laid down therein disapproving non-application of mind,
arbitrariness etc. will hold good in the present circumstance as well. In
the instant facts the statutory as OCI Cardholder subsists and it is in that
light the validity of notification is to be tested which certainly can be
raised by the petitioner and be addressed by this Court.
37. 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.
No doubt, as pointed out by the learned Additional Solicitor General,
Section 2(a) of the Foreigners Act, 1946 defines a ‘foreigner’ to mean a
person who is not a citizen of India. If the matter had rested at that,
there was no difficulty. In the instant case, there is a different dimension
which arises for consideration. The circumstance in which the petitioners
have come to be classified as ‘foreigners’ and the right which was
conferred on them is to be kept in view.
38. To put the matter in perspective and understand the concept
based on which the rights are being claimed by the petitioners, it is
necessary to advert to the fact situation and the law governing them
despite being classified as ‘foreigner’. 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. In
the changing world and in an era where the concept of multinationals
providing employment to Indian citizens had increased, the incident of
birth of the children taking place in a country outside India had also
increased. In that circumstance, successive governments had to bestow
their attention to this aspect of the matter to provide better rights to such
persons, who, though in the technical sense where ‘foreigners’, not being
citizens of this country, yet had a ‘connect’ with this country. 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 view, having considered all these aspects of the
matter, despite such persons not having the benefit of citizenship as
provided under Part II of the Constitution through Articles 5 to 8 thereof
and there being no scope for dual citizenship, certain rights were created
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under Act, 1955 which had come into force based on the provision in
Article 11 of the Constitution of India.
39. 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 Act, 1955 through the amendment Act 6 of 2004
brought certain rights and through substitution of Section 7A to 7D the
manner of registration of Overseas Citizen of India card holder;
renunciation of citizenship and cancellation of registration were provided
for. In the cases, on hand, the fact that 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 which has been extracted and noted above. 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 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.
40. In the said background it is necessary to note that as per the
information furnished relating to the status of the petitioners in W.P.(C)
No.891 of 2021 which is taken as an instance for demonstrating the
situation of their affinity with India and the number of years they have
been in India. The details are as provided in Annexure P/2 which is as
hereunder: -

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ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA &
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41. 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. 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. The manner in which they have conducted themselves
by being students in India would indicate that in addition to having the
umbilical connection with the country, they being aware of the right
conferred through the notifications dated 11.04.2005 and 05.01.2009 had
positioned themselves to further their professional career by making a
choice of their profession and undertaking the preparation for the same.
This was based on what was held out to that class of Overseas Citizens.
In fact, their entire educational career has been of the same standard,
with the same ‘advantages’ and ‘disadvantages’ as has been the case
with the students who are Indian citizens. In such situation,
though in the
strict term of the word ‘legitimate expectation’, it may not fall, a statutory
right conferred had sown the seed of hope recognising the affiliation to
this country, though they were not citizens in the strict sense.
42. 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. It is no doubt true
as contended by the learned Additional Solicitor General, the right
available to the OCI Cardholders is only the statutory right based on the
right that is conferred through a notification in terms of Section 7B(1) of
Act, 1955. Sub-section (2) thereto specifically indicates the right that
cannot be conferred even under sub-section (1) through a notification.
Though a notification issued under the sub-delegated power can be
withdrawn, modified or altered, the effect of the impugned notification
dated 04.03.2021 needs to be noted to consider as to whether the same
is wholly justified or as to whether any portion of it falls foul of the
object for which it is made and the manner in which it has been modified.
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43. 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. In fact, a perusal of the notification at first
blush gives an impression that merely the earlier notifications dated
11.04.2005, 05.01.2007 and 05.01.2009 have been consolidated to
crystallize all the rights to be provided under one notification. 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. In a situation where there is a certain marked economic difference
between OCI Cardholders and Non-Resident Indians to acquire such
seats, the OCI Cardholders claim to be at a disadvantage and the right
which was available to them earlier has stood altered to their detriment.
Even if that be so, if the said right which is conferred in modification of
the right which had been bestowed earlier was made with prospective
effect, certainly the petitioners and the similarly placed persons based
on
the contentions which are at present urged herein could not have
been heard to complain in a proceeding of this nature and would have
been a matter to be considered by the executive based on the claim of
the Indian diaspora.
44. However, what is necessary to be taken note is that 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.
45. The learned senior counsel for the petitioners would in that
context contend that since sub-section (2) to Section 7B of Act, 1955
does not exclude the right under Article 14 of the Constitution, it is
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available to be invoked and such discrimination contemplated in the
notification to exclude the OCI Cardholders should be struck down. 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 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.
46. As noted, the right of the OCI Cardholders is a mid-way 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. 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. Though detailed contentions are urged with
regard to the status of a citizen and the sovereign power of the State, as
already noted, in
these petitions the sovereign power has not been
questioned but the manner in which it is exercised in the present
circumstance is objected. The contention of learned Additional Solicitor
General is that the intention from the beginning was to grant parity to
OCI Cardholders only with NRIs. On that aspect as already noted above
we have seen the nature of the benefit that had been extended to the
petitioners and the similarly placed petitioners under the notifications of
the year 2005, 2007 and 2009. 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-à-vis foreigners holding
OCI Cards. It is further averred in the counter that number of seats
available for medical and engineering courses in India are very limited
and that it does not fully cater to the requirement of even the Indian
citizens. It is therefore contended that the right to admission to such
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seats should primarily be available to the Indian citizens instead of
foreigners, including OCI Cardholders.
47. 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. 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. No.4763 of
2023 for additional documents in W.P.(C) No.246 of 2022. The details
shown are as follows:-
“STATEMENT REFERRED TO IN REPLY TO RAJYA
SABHA STARRED QUESTION NO.64* FOR 13TH
DECEMBER, 2022
(a) to (c) As per information received from National Testing
Agency (NTA), the details of number of students who appeared
for the NEET-UG examination in the last three years are as under:-
Year 
2022 
2021 
2020 
Number of
students 
registered 
18,72,343 
16,14,777 
15,97,435 
Number
of
students 
appeared 
17,64,571 
15,44,273 
13,66,945 
The details of number of Undergraduate (UG)/Postgraduate (PG)
seats available during the admission process of last three years
are as under:-
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According to National Medical Commission (NMC), the
number of MBBS & PG seats vacant from 2018-19 to 2021-
22, year wise is as under:-
(Emphasis Supplied)
48. Hence, 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 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
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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.
49. To put the matter in its context for better appreciation of the
mischief caused by the impugned notification and the manner in which it
would irreversibly alter the situation, to which aspect there is non-
application of mind by respondent No.1, it would be appropriate to refer
to the existing facts of an individual petitioner. 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. From the tabular statement
supra, it is noted,
(a)
She was born on 31.12.2003 in California, USA.
(b)
Both her parents are Indian Nationals.
(c)
She has come to India in the year 2006
(d)
Has lived thereafter in India for 15 years.”
(e)
Presently she is at Pune, Maharashtra,
(f)
pursued her entire educational career in India
(g)
Passed the 12th standard which is the qualifying examination
to appear for the Medical Entrance also in India.
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.
06.12.2004. The said amendment was based on the recommendations
of a High-Level Committee on Indian diaspora. The Government of
India decided to register the Persons of
Indian Origin (PIO) of a certain
category as specified in Section 7A of Act, 1955 as Overseas Citizens
of India. The OCI scheme was introduced with the issue of notification
of 2005 which is in the background of the demands for dual citizenship
by the Indian diaspora and the concept of dual citizenship is not recognized.
50. Therefore 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 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
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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.
51. 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 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 Pre-Medical 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.
52. Therefore, 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 Pre-
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Medical 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 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.
53. 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.
54. We note that 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
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is about to be over. Hence we are of the view that the retroactive operation
resulting in retrospective consequences should be set aside and such
adverse consequences is to be avoided.
55. Therefore in the factual background of the issue involved, to
sum up, it will have to be held that though the impugned notification
dated 04.03.2021 is based on a policy and in the exercise of the statutory
power of a Sovereign State, the provisions as contained therein shall
apply prospectively only to persons who are born in a foreign country
subsequent to 04.03.2021 i.e. the date of the notification and who seek
for a registration as OCI cardholder from that date since at that juncture
the parents would have a choice to either seek for citizenship by descent
or to continue as a foreigner in the background of the subsisting policy of
the Sovereign State.
56. In light of the above, it is held that 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 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.
57. Hence, the notification being sustainable prospectively, we
hereby declare 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.
58. We further hold that the petitioners in all these cases and all
other similarly placed OCI cardholders will be entitled to the rights and
privileges which had been conferred on them earlier to the notification
dated 04.03.2021 and could be availed by them notwithstanding the
exclusion carved out in the notification dated 04.03.2021. The participation
of the petitioners and similarly placed OCI cardholders in the selection
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process and the subsequent action based on the interim orders passed
herein or elsewhere shall stand regularised.
59. Notwithstanding the fact that we have held the impugned
notification dated 04.03.2021 to be valid with specific prospective effect
in view of the power available to respondent No.1 under Section 7B(1)
of Act, 1955, keeping in perspective the wide ramification it may have in
future also on the Indian diaspora and since it is claimed to be based on
the policy decision of the Sovereign State, we expect that the same
would be examined in the higher echelons of the Executive with reference
to the rights already created.
60. In terms of the above, all these petitions/ appeals are allowed
in part to the above extent with no order as to costs.
61. Pending application, if any, stands disposed of.
Divya Pandey
Petitions/appeals partly allowed.
(Assisted by : Roopanshi Virang, LCRA)