Summary
Overseas Citizen of India cardholders schooled in India challenged the Home Ministry's notification of 4 March 2021 under Section 7B(1) of the Citizenship Act, 1955, which withdrew their earlier parity with non-resident Indians and confined them to NRI or supernumerary seats in NEET and similar admissions. The Supreme Court held that the Centre may alter such statutory rights and non-retrogression does not apply, but withdrawal must reflect application of mind: no material showed OCI candidates displacing citizens, seats lay vacant, and the change retroactively destroyed rights on which the petitioners had planned their education. The impugned portion was held to operate only for persons obtaining OCI cards after 4 March 2021.
Issues
- Whether the Central Government could, by notification under Section 7B(1) of the Citizenship Act, 1955, withdraw the right of Overseas Citizen of India cardholders to compete with Indian citizens for professional course seats and confine them to NRI or supernumerary seats.
- Whether the notification dated 04.03.2021 could apply to OCI cardholders who had already positioned themselves for medical and other entrance examinations on the strength of the earlier notifications.
Provisions considered
- Sections 2(ee), 7A and 7B(1) and (2), Citizenship Act, 1955OCI cardholders are foreigners given a mid-way status in lieu of dual citizenship and are entitled only to such rights as the Central Government notifies under Section 7B(1); the power to confer includes the power to modify, but a withdrawal must be reasonable, non-arbitrary and have nexus to its purpose and cannot be exercised unmindful of consequences merely because it is a sovereign power. (¶¶ 14, 15, 38, 39, 42, 46, 56)
- Clause 4(ii), its proviso and Explanation (1) of the notification of 04.03.2021; earlier parity clauses, Notifications under Section 7B(1) dated 11.04.2005, 05.01.2007, 05.01.2009 and 04.03.2021The earlier notifications gave OCI cardholders parity with NRIs, who compete with citizens for general seats as well as NRI seats; the 2021 notification, while consolidating the rights, restricted OCI cardholders to NRI and supernumerary seats and barred them from seats reserved for citizens, altering an existing right to their detriment. (¶¶ 16, 17, 18, 19, 20, 21, 22, 43, 44)
- Article 14, Constitution of IndiaOCI cardholders form a class by themselves and cannot claim parity with citizens, and precedents on legitimate expectation and non-discrimination arose between citizens and the State; but their spirit disapproving arbitrariness and non-application of mind governs the testing of a notification that withdraws a subsisting statutory right. (¶¶ 35, 36, 45, 46)
Held
- The doctrine of non-retrogression in Navtej Singh Johar cannot assist persons who admittedly are not citizens and hold only statutory rights, and the State must balance the interests of citizens and non-citizens when a change is made; the sovereign power to issue the notification is not in question, only the manner of its exercise. (¶¶ 13, 35, 36, 42, 46)
- Beyond a bare statement that seats are limited and should go to citizens, no material showed how many OCI candidates had secured seats to the exclusion of equally meritorious citizens, while a Rajya Sabha reply of December 2022 showed MBBS and postgraduate seats lying vacant year after year; the decision traced only to a Secretaries' meeting of 19.07.2018 without any recorded deliberation, and the earlier notifications were superseded without saving accrued rights, which reflects non-application of mind and arbitrariness without nexus to the object. (¶¶ 46, 47, 48, 52)
- Students like the first petitioner, born in 2003 and resident and educated in India since 2006, whose parents had no occasion to seek citizenship by descent because the OCI scheme held out the right, would see their entire schooling and eligibility erased at one stroke; the notification, though not retrospective as to those already admitted, is retroactive in denying rights to those about to compete, shifting the goal post when the game is about to be over, and 'things done' on the faith of the earlier notifications must be protected. Policy for the future remains the State's domain, and the Executive is expected to re-examine the matter in view of the rights already created. (¶¶ 49, 50, 51, 53, 54, 55, 59)
Result
Writ petitions and appeals partly allowed without costs; the supersession of the notifications of 11.04.2005, 05.01.2007 and 05.01.2009 and clause 4(ii), its proviso and Explanation (1) of the notification dated 04.03.2021 declared to operate prospectively only in respect of persons who obtain OCI cards after 04.03.2021; the petitioners and all similarly placed OCI cardholders held entitled to the rights conferred before that notification, and their participation in selection processes under interim orders regularised; pending applications disposed of.