OCI Rights: Supreme Court Urges 'Higher Echelons' To Examine 2021 MHA Notification Considering Impact On Indian Diaspora

Noting that the 2021 notification would have a ‘wide ramification’, a Bench comprising Justice A.S. Bopanna and Justice C.T. Ravikumar stated that the Union Government is expected to scrutinise the notification with reference to the rights of the OCIs already created by the previous notifications.

“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.”

The Court noted that in exercise of power under Section 7B of the Citizenship Act, 2005, the Union Government had issued a notification on 11.04.2005 granting OCI’s 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 and plantation properties. In 2007, a subsequent notification was issued, which conferred similar treatment with Indian nationals in matters of tariffs in air fares, entry fee at National Parks and Wildlife Sanctuaries. Thereafter, in 2009, by way of another notification, OCIs were given parity with NRIs in pursuing, inter alia, the profession of a doctor, dentist, nurses and pharmacists. They were also granted parity to appear for the All India Pre-Medical Test.

In this backdrop, the Court considered Proviso to Clause 4(ii) of the 2021 notification, which precluded OCIs from securing admission against any seat reserved exclusively for Indian citizens. It took note of the fact that the 2021 notification permits the NRIs to participate in the selection process for allotment of seats along with Indian citizens apart from the seats reserved exclusively for NRIs. However, OCIs can only compete for the NRI quota seats. The OCIs have to compete with the NRIs for a limited number of seats. The Court observed that the fee structure for these NRI seats was also higher. Even the OCIs who have settled down in India and have undergone their entire educational course in India would not be eligible for admission against seats reserved for Indian nationals.

The Court considered the circumstances under which the Union Government had decided to confer rights to OCIs, who in the technical sense were ‘foreigners’, yet had a connection with India. With the increase in multinational companies employing Indian citizens, the incident of children being birthed outside India also increased. Therefore, the Government decided to confer certain rights to them. The Court noted that the right of the OCI cardholders is a midway right in the absence of dual citizenship.

“...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 under Act, 1955 which had come into force based on the provision in Article 11 of the Constitution of India.”

The Court noted that when rights which were conferred by a statute are being withdrawn by a notification, the process for withdrawal ought to pass the test of reasonableness and rational nexus. In this context, the Court observed -

“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.”

It further noted that policy decision for future is within the domain of the Executive, but also considered the aspect of legitimate expectation that came from the assurance in the earlier notifications. The Court held -

“...on the face of it the impugned notification not saving such accrued rights would indicate non application of mind and arbitrariness in the action…

[...]

…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.”

[Case Title: Anushka Rengunthwar And Ors. v. Union of India And Ors. WP(C) No.891/2021]

Citation : 2023 LiveLaw (SC) 73

Citizenship Act 1955- Section 7B- Rights of Overseas Citizens of India - Notification dated 04.03.2021 issued by MHA barring OCI students from competing in seats meant for Indian students in NEET/JEE challenged- Court holds that the notification will apply only prospectively from 04.03.2021- Provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 and who seek for a registration as OCI cardholder from that date - Para 55

Citizenship Act 1955- Section 7B- Rights of Overseas Citizens of India - Court urges that higher echelons of the Executive should relook the future application of the notification dated 04.03.2021 having regard to the wide ramifications on Indian diaspora - Para 59.

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