BREAKING : Karnataka High Court Upholds Centre's Notification Treating OCIs As NRIs For College Admissions; Terms It "Protective Discrimination" For Natives

A single judge bench of Justice Krishna S Dixit, while dismissing a bunch of petitions said, "These writ petitions being devoid of merits fail. However in the special circumstances of the case, all the petitioners are permitted to stake a claim for admission consistent with the interim reliefs made in favour with many of them. Subject to the eligibility & qualification; a period of ten days is granted to the petitioners to produce requisite documents before the Karnataka Examination Authority."

The petitioners Alekhya Ponnekanti and others had sought to quash the government notification which reads thus:

"In exercise of the powers conferred by sub section (1) of section 7B of the Citizenship Act 1955... and in supersession of the notification... dated 11.04.2005 and the notification...dated 05.01.2007 and S.O.36(E), dated 05.01.2009..., the Central Government hereby specifies the following rights to which an Overseas Citizen of India Cardholder...shall be entitled...namely:-

(4) parity with Non-Resident Indians in the matter of,-

(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;

.......

Explanation.-For the purposes of this notification,- (1) The OCI Cardholder (including a PIO cardholder) is a foreign national holding a 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 fulfils the "Non-Resident Indian" status as per the Income Tax Act, 1961 (43 of 1961)."

Petitioners arguments:

It was submitted that under the erstwhile Notifications of 2005 & 2009, OCI Card Holders had the accrued right of admission to the professional educational courses and these rights are saved even under the impugned Notification, but for the objectionable part.

The Central Government has without competence issued the notification, in which only the Parliament which could have issued. Moreover, it is issued in violation of the principle of natural justice i.e., audi alteram partem (Listen to the other side). It also offends the principle of non-retrogression of rights.

Respondents opposed the petitions.

It was submitted that, "Petitioners are not the citizens of India; they possess foreign passports and Indian VISA granted by our Embassy in their respective countries; they are only OCI Cardholders. Citizenship & OCI status are mutually exclusive. Our Constitution does not sanction dual citizenship on which petitions are structured."

Further, the rights of aliens are only those which have been specifically conferred by the Central Govt, the rights un-irrevocably given by a subordinate legislation can be taken away any time. The principles of natural justice are alien to legislative process and therefore they remain so to quasi-legislative process as well, what right should be given to the aliens is a matter of policy.

Moreover, impugned policies of the kind are made "to protect the rights of Indian citizens in such matters". Since Indian citizens constitute a class apart for a favorable treatment, in matters of this nature; the native citizens are comparatively in a disadvantageous position and therefore, they cannot be made to compete with the OCI Cardholders.

Court findings:

Firstly the court relied on the single judge order in the case of W.P.Nos.7376- 7378/2019 between Pranav V Deshpande v. State & Others, decided on 10.4.2019 and the subsequent appeal against the order, wherein notification issued in 2005 and 2009 were under challenge. The court in its order had recorded a finding that OCI Cardholders are not Indian citizens.

Further the court agreed with the submissions that impugned part of the 2021 Notification is consciously incorporated with intent to protect the interest of the domiciling natives who lack the competitive edge qua the OCI Cardholders and the NRIs, both these classes i.e OCI & NRI who are now equated to each other obviously have greater exposure to the outer world, by virtue of birth & brought up.

The court also noted, "Article 14 of our Constitution sanctions 'protective discrimination'; it hardly needs to be stated that the foreigners and the native citizens apparently belong to two different classes and therefore, treating them alike would fall foul of the principle of equality."

It added "No NRIs have come forward to lay a challenge to their being treated differently from domiciling citizens and this is understandable inasmuch as both they constitute different categories. They have also not laid a challenge to the impugned Notification grieving that the OCI Cardholders are approximated to them and thereby, their claim to admission in the NRI quota exclusively earmarked for them, is rendered less prospected; that being the position, no case of discrimination is made out by the OCI Cardholders, for invoking Article 14."

Junking the contention of petitioners that the Central government could not have issued the notification the court referring to Private International Law, said "Rights of the aliens on a foreign soil are those which the host country grants to them and that no alien can lay a claim for more rights than are granted; in all civilized jurisdictions."

It opined "It is also true that a distinction is made in practically all countries between citizens & non-citizens and between domiciled & non-domiciled aliens, with reference to their rights & duties; how the aliens should be treated is essentially a policy matter left to the wisdom of the government of the day."

Further it observed "Generally when the Central Govt. grants certain rights & facilities to the foreigners, it does it as a Sovereign Power; the exercise of such a power though required to be consistent with the constitutional policy, has international implications; the law relating to aliens has to be construed consistent with the "principle of State Sovereignty". In serious matters like this, the judiciary cannot run a race of opinions with the Executive; our Constitution does not enact such a race course. The judiciary has to show due deference to the decisions of other branches of the State, made in the spheres ear-marked for them. This is an unspoken constitutional imperative founded on the doctrine of 'Separation of Powers' which is recognized as a basic feature of the Constitution."

The court also held that the rights conferred on the OCI Cardholders by virtue of impugned Notification cannot be said to possess elements of constitutional law. Thus the doctrine of retrogression of rights cannot be attracted.

Further the court rejected the contention that principles of natural justice were not followed before passing the notification. It said "Ordinarily, the legislative & quasi-legislative process culminating in a statutory instrument of the kind does not admit the violation of principles of natural justice as a ground for its invalidation. The impugned Notification has been issued in exercise of quasi-legislative power availing in terms of sub-section (1) of section 7B and thus, it is a piece of subordinate legislation."

Taking a lenient view the court continued the interim orders passed in some petitions it said "Petitioners are all young & innocent minds who would be disillusioned & disappointed with the court, if the benefit granted to them by way of interim orders are abruptly snatched away, especially when there is no blameworthy conduct on their part. This Court is not only of law but also of justice & equity, circumstances of the case warrant that petitioners should be permitted to retain the benefit of interim orders. The same benefit needs to be extended to those of the petitioners who were entitled to the grant of interim order on the principle of parity, but were somehow not granted during the course of long hearing; at this eleventh hour they have nowhere to go, since time lines have expired."

It may be noted that the Supreme Court has passed interim orders allowing OCI candidates to participate in general counselling for NEET-medical admissions for the academic year 2021-22.

Case Title: Alekhya Ponnekanti v. Union Of India

Case No: W.P.No.11504/2021:

Date Of Order: November 8, 2021.

Appearance:

Advocate Ajoy Kumar Patil, Advocate Nitin R, for Petitioners.

Advocate N.K. Ramesh, for R2;

Asg M.B.Naragund, A/W Advocate Shivakumar, for R3

Aag Dhyan Chinnappa, for State Of Karnataka.

Click Here To Read/Download The Order