NEET-UG : Supreme Court Permits OCI Candidates To Appear For Counselling In General Category For 2021-22; Says 'They Are Indian Origin; Not Outsiders'

The Supreme Court on Thursday passed an interim order allowing Overseas Citizens of India(OCI) candidates to participate for the NEET-UG counselling in the general category for the year 2021-22.

The Court passed the interim order in a writ petition filed by OCI candidates challenging a notification issued by the Ministry of Home Affairs to treat them at par with Non-Resident Indians(NRIs) for the purpose of college admissions.

The Court directed the National Testing Agency(NTA) to declare the results of OCI candidates and permit them to appear for counselling in general category. The Court clarified that the order is confined only to the academic year 2021-22.

A bench of Justices Abdul Nazeer and Krishna Murari passed the following order :

"We are of the view that at least for the current academic year 2021-2022, the petitioners are entitled to be considered eligible for all the medical seats which the OCIs were eligible for before the issuance of the impugned notification dated March 4, 2021. Therefore we direct the NTA to declare the result of the examination taken by the petitioners NEET UG 2021 and the eligible petitioners are permitted to appear for the counselling in the general category. This order is confined to the academic year 2021-2022."

When the matter was called for hearing, Justice Abdul Nazeer, the presiding judge of the bench remarked, "They are all Indian origin & they are not outsiders. They have sent dollars for our country & they have already undergone. They don't have money like NRI's. Dont you think it looks arbitrary? Give them some time.  Legal aspects apart. There is a challenge to the provision itself we'll consider at later stage. But this is so sudden.... I don't know how many of them will pass. You have not made any condition precedent. You have allowed them to participate. You know legitimate expectation again. From all angles, what is the justification like this?"

"Our only objection is that you can take some time to take the decision. We might not have any objection subject to what is stated is that time is taken to apply this. All of a sudden this change, we don't know what their condition is," Justice Krishna Murari added.

The Court will hear the other issues raised in the petition on October 20.

Courtroom Exchange

When the matter was called for hearing, Justice Abdul Nazeer, the presiding judge of the bench remarked, "They are all Indian origin & they are not outsiders. They have sent dollars for our country & they have already undergone. They don't have money like NRIs. Don't you think it looks arbitrary? Give them some time. Legal aspects apart. There is a challenge to the provision itself we'll consider at a later stage. But this is so sudden.... I don't know how many of them will pass. You have not made any condition precedent. You have allowed them to participate. You know legitimate expectations again. From all angles, what is the justification like this?"

Additional Solicitor General Aishwarya Bhati, appearing for the Centre submitted that the challenge was to the system of dual citizenship in the Constitution of India, Section 9 of the Citizenship Act and the Notification dated March 4, 2021. She also submitted that challenges have been heard with regards to the constitutionality of section 9 of the Citizenship Act and the Court has upheld the same in various judgements.

"There are several conditions upon which a person becomes OCI's but they are not Indian citizens in terms of constitution & the Foreigners Act. But they have a special privilege.There are large citizens who do not have access to resources of their country. OCI card holders have benefits even in terms of taking citizenship," ASG added.

Remarking on the timing of the notification and its implementation and, Justice Abdul Nazeer said,

"Our country is known for inclusiveness.  You can bring non-citizens and give them citizenship. These are very much Indians. Maybe they must have gone abroad. Section 9 must have been upheld many times now. But we are on the question of an immediate problem, namely, the notification."

"In so far as notification is concerned, they were not having these privileges or rights. You conferred upon them these privileges and rights. And subsequently to say that without any sudden, you withdrew that. From where they have to go? The balance of convenience is in their favour. This is the prima facie case because such a notification can be declared as arbitrary under Article 14. How do you say that prima facie? So far as final termination are concerned, they may be relevant. But they may not be arising at the interim stage," Justice Krishna Murari added.

Replying to the comments put forth by the bench, Additional Solicitor General ASG Bhati submitted that the impugned notification did not take away any right and that arguments of the petitioner were projected in such a manner that the rights of OCI have been taken away.

"They still have a right to participate in the exam, they still have the right. This impression has been wrongly created. There is no right that has been taken away. That is why when my colleagues asked yesterday how did you participate in the exam yesterday without an interim order, its because they are entitled to and they have been given that entitlement to participate, take those seats. But what seats? Only the NRI seats. They cant come for the seats reserved for Indians," ASG Bhati further submitted to substantiate her contention.

Replying to a question put forth by Justice Krishna Murari with regards to whether the condition of OCI card holders being at par with NRI's existed prior to impugned notification, the ASG submitted that the the earlier OCI's were governed by the individual laws of the State.

Adding that there were 3 classifications (Indian Citizenship, NRI's and OCIs'), the ASG submitted that the OCI card holders were the ones who have voluntarily taken citizenship of another country due to the Constitution allowing them to do so. She further submitted that in terms of the Statute, special privileges have been made available to the OCI card holders by way of a notification issued by the Government of India.

"In terms of the statute and special privileges that have been made available to them by GOI notification, they have to meet a much lesser threshold for becoming Indian citizens. They are all US, UK citizens who only have to be in India for 12 months. For others, they have to live for much larger periods. For OCI card holders, the privileges are many but to say that Indian citizen students. Many of these seats are subsidised. There is a government quota, management quota and after that they have the NRI quota. So right has not been taken away," ASG added.

She also argued that the crux of the matter pertained to the fees that they would have to pay after being considered at par with the NRI's.

"We want to know the exact situation which was prevailing before the impugned notification was brought into effect with respect to the payment of fees by those students who are OCI card holders. What was the fee structure? Were they liable to pay the fee structure of NRI," Justice Krishna Murari asked.

On ASG Bhati's submission that the fee structure prior to the impugned notification pertained to the quota the OCI's fell into and was not restricted to the fees charged from NRI's, Justice Krishna Murari remarked,

"You can also argue that they want to take advantage of this country also and that country also. You are right. But our only objection is that we give them some time to make a decision and don't enforce it immediately. We might not have any objection subject to what is stated. Why of a sudden this material change. We don't know what position they are in. They had legitimate expectations that alright this year, they will hold the exam and appear and as a threshold of the exam, they will have to appear in the NRI quota. The question of participating in the counselling on a particular quota only depends on the year of the exam and not before that. Now once they clear the exam, you all of a sudden say that you will have to pay a fee of NRI quota."

"Secondly, the NRI quota, there is some 10% of the seats I think. There is some kind of auction in the seats because we know what happens in Karnataka. These people can't even think of competing with the NRI 10% quota. They can't compete for 8 or 10% of the NRI seats," Justice Abdul Nazeer added.

Remarking that OCI's paying the fees at par with the NRI's indirectly took away their right, Justice Krishna Murari said that by way of this notification the OCI's were deprived of planning their studies in their own country.

"Even if we agree with your submission that no right has been taken away but only a condition has been added in the notification with regards to the fees, this not directly but indirectly takes away the right because the person will not be in a position to pay. If you would have told them before, they would have been in a position to pay what an NRI pays. You expect them to pay such a huge amount overnight? You may be right in what you are contending but what we are looking at is that by putting this condition, you have virtually snatched away this right. We don't deny your power and we don't object to your power of enforcement but only the manner and timing of enforcement is arbitrary", Justice Krishna Murari further said.

Submitting that the notification was issued in March and that there were options for study loans too, ASG Bhati argued that the Centre was not trying to establish that its power was all supreme. It was also her contention that the OCI's were not miniscule category and also argued that allowing the benefits to OCI card holders would have ramifications.

Senior Advocates Vikas Singh , Devadatt Kamat, Anitha Shenoy appeared for the petitioners.

Senior Advocate Vikas Singh submitted that the amendment was brought in 2003 and the OCI's enjoyed the privilege since 2009. It was also his contention that the notification also did not give the OCI's an option to apply for citizenship and thereafter be eligible for taking the exam.

"I appreciate it if they had done that next year you'll be eligible provided you take the citizenship. They could have done that but this is also not there in the notification. If they had given me one year's time for taking the citizenship, because July was the date. There was no time to take citizenship. If it is applied next year, they will be in a position to take the citizenship," Senior Advocate Singh contended.

Adding that it would consider larger issues at an appropriate stage, the bench adjourned the matter to be heard after Dussehra Break.

"Let them bear the fruits of our interim order," Justice Abdul Nazeer remarked while adjourning the matter

Details of the petition

The writ petitions have challenged the notification dated March 4, 2021 ("impugned notification") issued by the Ministry of Home Affairs which treats Overseas Citizens of India at parity with Non Resident Indians with regards to All India Entrance Tests such as NEET, JEE (Mains), JEE (Advanced) or such other tests for the purpose of admissions.

The petition had also sought for declaration of the clause 4 (ii) of notification dated March 4, 2021 ("impugned clause") as ultra vires Articles 14 and 21 of the Constitution of India in so far as it fails to accord parity to resident Indian OCIs with resident Indian citizens in all matters of entry and admission to professional colleges in India from the year 2021-2022 onwards.

It had also sought for quashing Para 4.2.3 of the NEET UG Information Bulletin for Admission to Undergraduate Medical Courses which states that OCIs are not eligible for admission against any seat reserved exclusively for Indian citizens, and seeks the passport number/citizenship certificate number of OCIs as proof of identity.

(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)

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