Centre's Decision To Bar OCI Students From General Seats Will Apply To Only Those Who Register As OCIs After 04.03.2021 : Supreme Court

Most petitioners had completed their education in India; unfair to ask them to go back to their birth nation now

The Court noted that most petitioners had completed their entire school education in India, despite their birth in a foreign country. It further noted that the Central Government had been expanding the rights bestowed on OCI card holders through its previous notifications issued in 2005. These rights were conferred in exercise of powers under Section 7B of the Citizenship Act 1955.

In this background, though the doctrine of legitimate expectation may not apply strictly, the Court observed that the "statutory right conferred had sown the seed of hope recognising the affiliation to this country".

"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 implications", the Court stated in the judgment

Statutory rights should not be withdrawn in an arbitrary manner

The Court stated, "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 When a statutory right was conferred and such right is being withdrawn through a notification, the process for withdrawal is required to demonstrate that the action taken is reasonable and has nexus to the purpose.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".

No material to show benefits to OCI students deprived Indian students' opportunities

The Centre's justification was that the move was intended to protect the admissions for Indian students. However, the Court said that except a bare 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".

The Court formed the opinion that there are rights accrued to OCI students who had been living in India for past several years ( the judgment illustrated the case of a petitioner who had been living in India since 2003), which cannot be retroactively taken away abruptly.

"The goal post is shifted when the game 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", the Court held.

The Court also expressed the view that the future application of notification should be re-looked by the "higher echelons of the Executive" having regard to the wide ramifications on the Indian diaspora.

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 the 2021-2022 academic year. In the present academic year, instead of granting interim relief, the Supreme Court said that it would hear the matter at length and finally decide the same.

Arguments during hearing

Referring to the judgment in Maneka Gandhi v. Union of India, Senior Advocate, Mr. P. Chidambaram, appearing on behalf of the OCI students, had submitted that while classification is allowed, micro-classification has been frowned upon by this Court. He had pointed out that, while those with OCI status are eligible only for NRI seats, NRIs can apply for NRI as well as Indian seats. It had been argued that till 2020, the OCI students were considered for general category seats.

Senior Advocate, Mr. K.V. Vishwanathan, appearing for students who are born to OCI parents, and have been residing in India had submitted 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.

The Senior Counsel explained that OCI was a concept introduced by the Government of India in 2005 to confer certain rights to persons of Indian origin, who may have foreign citizenship. The scheme was floated to encourage them to settle in India and seek their services here. In some cases, children may have obtained foreign citizenship when they were born abroad while their parents were working there. They might have returned to India later; they might have been brought up in India, but still have the OCI status due to their foreign citizenship.

It had been also emphasised on 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.

ASG Aishwarya Bhati ,appearing for the Union Government, submitted 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.

During the course of the hearing the Bench had asked the Senior Counsel for the OCI students why they are not giving up their foreign citizenships to compete in the general category for admission to medical colleges.

Mr. Vishwanathan had addressed the concern raised by the Bench by submitting that the petitioners are not seeking conferral of any new rights but the continuation of the benefits which were being given till 2021. In this regard, he had 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. It had been asserted, many OCIs chose to settle in India on the basis of the rights conferred under Section 7B. Mr. Vishwanathan had contended that the Centre's notification is painting all OCIs with the same brush, without considering persons who have been residing in India for long.

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