Why Don't You Apply For Indian Citizenship? Supreme Court Asks OCI Students Seeking Admission In Non-NRI Seats

The Supreme Court on Tuesday asked why don't the children of Overseas Citizens of India (OCI), who are staying in India, apply for Indian citizenship after giving up their foreign citizenship.

The Court raised this query while hearing a batch of petitions challenging the Centre's 2021 notification as per which OCI students are entitled to apply only to NRI seats in NEET admissions.

Senior Advocate KV Vishwanathan, appearing for the petitioners, submitted that he is representing students, who are born to OCI parents, and have been residing in India. He stated that OCIs can't be compared with Non-Resident Indians (NRIs), as the NRIs are living abroad and are earning in foreign currency. However, many OCI families are staying in India.

"They have comeback and their children have completed their studies till 12th here and suddenly a notification in 2021 says you will be on par with the NRIs and will not be able to apply for general seats or All India Quota even though they fulfil the domicile requirement", the senior lawyer submitted.

At this juncture, the bench comprising Justices AS Bopanna and Sudhanshu Dhulia became curious as to why the OCI persons are staying in India. Vishwanathan explained that OCI was a concept introduced by the Government of India in 2005 to confer certain certain rights to persons of Indian origin, who may have foreign citizenship, so that they are encouraged to settle in India and give their services here. In some cases, children may have got foreign citizenship when they were born abroad while their parents were working there, and they might have returned to India later.  They might have grown in India, but with the OCI status due to their foreign citizenship. Hence, the senior counsel contended, it will be illogical to compare them to NRIs, who are practically living outside India.

At this point, Justice Bopanna commented about the practice followed by some people, whereby the delivery of the child is planned in such a way so that it takes place in a foreign country where automatic citizenship is granted on birth. "But later, they will face problems like this. You are neither there nor here. You are stuck", Justice Bopanna commented.

"Why don't you get Indian citizenship here?", Justice Dhulia asked.

Vishwanathan replied that a decision regarding citizenship can be taken only after a person attains the age of majority and most of the students applying for admissions are minors. He pointed out that the percentage of NRI seats in medical admissions is very less and the fees for such seats is exorbitant, which can't be afforded by OCI students living in India.

"The NRIs earn in dollars or other foreign currencies.  But the OCI parents here earn in Rupee and pay tax. But their ward is OCI, who is now treated as NRI as per the 2021 notification. The flipside is that they can't go to a college in foreign countries as they are not considered a home candidate".

Advocate Kanu Agarwal, appearing for the Union Government, requested for adjournment as the Solicitor General and Additional Solicitor General are engaged in another hearing. The Union's counsel added that the petitioners are trying to compete in the seats meant for Indian citizens, who have no avenues outside, whereas, the OCI students can get citizenship rights abroad. 

Commenting that medical seats are a "scarce commodity", Justice Dhulia asked Viswanathan, "why don't you give up the citizenship there?".

In reply, Vishwanathan submitted that the petitioners are not asking for the conferral of any new rights but the continuation of the benefits which were being given till 2021. In this regard, he referred to Section 7B of the Citizenship Act 1955, which states that the OCI persons are entitled to the rights specified by the Government. Since the rights had been in existence for long, there is a legitimate expectation and the sudden withdrawal of the rights is arbitrary, he argued. Many OCIs chose to settle in India on the basis of the rights conferred under Section 7B.  The Centre's notification is painting all OCIs with the same brush, without considering persons who have been residing in India for long.

After a brief hearing, the bench listed the matter on next Tuesday for hearing. A lawyer appearing in a connected matter cited urgency by saying that the mop-up rounds for counselling are going on.

Last year, the Supreme Court had passed an interim order allowing OCI candidates to apply to general seats for NEET admissions. However, the Court had clarified that the interim order was confined only to 2021-2022 academic year.

(Cases : Dr. Radhika Thapetta and others v. Union of India and others (WP(c) No.1397/2020); Anushka Rengunthwar and others v. Union of India and others(WP(c) No..891/2021) and Krithika K and others versus Union of India and others(WP(c) No. 1032/2021)