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SUPREME COURT OF INDIA
A.S. BOPANNA, C.T. RAVIKUMAR, JJ.
Anushka Rengunthwar & Ors. – Appellants
Versus
Union of India & Ors. - Respondents
Writ Petition (C) No.891 of 2021 Writ Petition (C) No.503/2022, Writ Petition (C) No.35/2022, Writ Petition (C) No.246/2022, Writ Petition (C) No.155/2022, Writ Petition (C) No.347/2022, Writ Petition (C) No.380/2022, Writ Petition (C) No.322/2022, Writ Petition (C) No.629/2022, Writ Petition (C) No.740/2022, Writ Petition (C) No.706/2022, Writ Petition (C) No.741/2022, Civil Appeal No. 812/2023 (arising out of SLP(C) No. 16306/2022) Writ Petition (C) No.22/2022, Writ Petition (C) No.1070/2022, Writ Petition (C) No.1230/2021, Writ Petition (C) No.1186/2021, Writ Petition (C) No.838/2022, Writ Petition (C) No.1032/2021, Writ Petition (C) No.961/2022, Writ Petition (C) No.1123/2021, Writ Petition (C) No.1128/2021, Writ Petition (C) No.1125/2021, Writ Petition (C) No.1150/2021, Writ Petition (C) No.1129/2021, Writ Petition (C) No.1141/2021, Writ Petition (C) No.1143/2021, Writ Petition (C) No.1149/2021, Civil Appeal No. 811/2023 (arising out of SLP(C) No. 17153/2021) Civil Appeal No. 810/2023 (arising out of SLP(C) No. 17158/2021) Writ Petition (C) No.1174/2021 and Writ Petition (C) No.34/2023
Decided on : 03-02-2023
(A) Citizenship Act, 1955 – Section 7B(1) – Right of NRIs to appear in Medical Admission Tests – Parity with Indian students – Challenge to Clause 4(ii), its proviso and Explanation (1) as contained in impugned notification dated 04.03.2021 bearing F No.2611/CC/05/2018-OCI – Through impugned portion of notification, parity which existed with Non-Resident Indians including in field of education has been modified to indicate their eligibility for admission only against any “Non-Resident Indian seat” or any supernumerary seat – Non-Resident Indians apart from seats reserved only for Non-Resident Indians, are also entitled to participate in selection process for allotment of seats along with Indian citizens for remaining seats as well, which benefit was hitherto available to OCI Cardholders by virtue of their parity with NRIs – However, by presently specifying that OCI Cardholders would be eligible for only Non-Resident Indian seat or any supernumerary seat, right available to OCI Cardholders is only for seats which are reserved as NRI quota seats, for which they would have to compete with NRI candidates for limited number of seats, for which higher fee structure is also fixed – Most of petitioners are all persons who are either of full age or are yet to reach full age but are all children, whose both parents or one of them are Indian citizens – In changing world and in an era where concept of multi-nationals providing employment to Indian citizens had increased, incident of birth of children taking place in a country outside India had also increased – In a concept where ‘dual citizenship’ was not recognised, such persons as like that of petitioners were considered as Overseas Citizens of India card holders – Right to which petitioners are making a claim is conferred under Section 7B(1) to Act, 1955. (Paras 22, 38 and 39)
(B) Citizenship Act, 1955 – Section 7B(1) – Right of NRIs to appear in Medical Admission Tests – Challenge to Clause 4(ii), its proviso and Explanation (1) as contained in impugned notification dated 04.03.2021 bearing F No.2611/CC/05/2018-OCI – Right available to OCI Cardholders is only statutory right based on right that is conferred through a notification in terms of Section 7B(1) of Act, 1955 – Clause 4(ii) of notification though provides right to appear for All India Entrance Test, which was hitherto available to make them eligible for admission in parity with Non-Resident Indians has now restricted eligibility for admission only against 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, OCI Cardholders claim to be at a disadvantage and right which was available to them earlier has stood altered to their detriment – Right of OCI Cardholders is a midway right in absence of dual citizenship – When a statutory right was conferred and such right is being withdrawn through a notification, process for withdrawal is required to demonstrate that 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 – Dire need to take away bestowed right by applying 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 object sought to be achieved. (Paras 41, 43, 46 and 48)
(C) Citizenship Act, 1955 – Section 7B(1) – Right of NRIs to appear in Medical Admission Tests – Challenge to Clause 4(ii), its proviso and Explanation (1) as contained in impugned notification dated 04.03.2021 bearing F No.2611/CC/05/2018-OCI – Respondent No.1 in furtherance of policy of Sovereign State has power to pass appropriate notifications as contemplated under Section 7B(1) of Citizenship Act, 1955, to confer or alter rights as provided for therein – However, when a conferred right is withdrawn, modified or altered, process leading thereto should demonstrate application of mind, nexus to object of such withdrawal or modification and any such decision should be free of arbitrariness – In that background, 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 rights which were conferred also as a matter of policy of Sovereign State – Impugned portion of notification which provides for supersession of notifications dated 11.04.2005, 05.01.2007 and 05.01.2009 and 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 – Retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided. (Paras 52, 53, 54, 56 and 57)
Facts of the case:
Present case essentially raises a singular issue with regard to the classification made between Indian citizens and Overseas Citizens of India cardholders and same being statutory, whether it is sustainable. 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 petitioners are aspiring to become Doctors by pursuing 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 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, Overseas Citizens of India cardholders were given right of parity with Non-Resident Indians in respect of the facilities as notified, including in the field of education, who in turn had the parity with Indian Citizens. 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.
Findings of Court:
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 notification dated 04.03.2021. Participation of petitioners and similarly placed OCI cardholders in selection process and the subsequent action based on interim orders passed herein or elsewhere shall stand regularised.
Result : Petitions/Appeals allowed in part.
Key Points: - The Union of India has the power to pass notifications under Section 7B(1) of the Citizenship Act, 1955, to confer or alter rights (!) . - When a conferred right is withdrawn, modified, or altered, the process must demonstrate application of mind, a nexus to the object, and freedom from arbitrariness (!) . - The impugned notification dated 04.03.2021, while competent under Section 7B(1), suffers from non-application of mind and acts retroactively by taking away previously conferred rights (!) . - The impugned notification's supersession of earlier notifications and clause 4(ii), its proviso, and Explanation (1) shall operate prospectively for OCI cardholders who secured their status after 04.03.2021 (!) . - Petitioners and similarly placed OCI cardholders are entitled to the rights and privileges conferred before the 04.03.2021 notification, notwithstanding the exclusions in the new notification (!) . - Participation of petitioners and similarly placed OCI cardholders in selection processes and subsequent actions based on interim orders shall be regularized (!) . - The court expects the Executive to examine the notification's future implications on the Indian diaspora, considering the rights already created (!) . - The petitions/appeals are allowed in part (!) . - OCI cardholders were previously given parity with Non-Resident Indians (NRIs) in educational fields, including appearing for medical entrance tests (!) (!) . - The impugned notification restricted OCI cardholders' eligibility for admission to only "Non-Resident Indian seat" or any supernumerary seat, and explicitly excluded them from seats reserved exclusively for Indian citizens (!) (!) .
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.
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
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