LEGAL ISSUE: Whether Overseas Citizens of India (OCI) cardholders should be treated on par with Non-Resident Indians (NRIs) for admissions to educational institutions, specifically for seats not exclusively reserved for Indian citizens.
CASE TYPE: Education/Citizenship Law
Case Name: Anushka Rengunthwar & Ors. vs. Union of India & Ors.
Judgment Date: 3 February 2023
Introduction
Date of the Judgment: 3 February 2023
Citation: (2023) INSC 83
Judges: A.S. Bopanna J. and C.T. Ravikumar J.
Can the government retroactively change admission rules for Overseas Citizens of India (OCI) cardholders who have been residing and studying in India for years? The Supreme Court of India addressed this critical question in a batch of petitions filed by OCI cardholders, primarily students, challenging a notification that restricted their access to general category seats in medical and other professional courses. The court examined the balance between the rights of OCI cardholders and the policy decisions of the government. The bench comprised Justices A.S. Bopanna and C.T. Ravikumar. The judgment was authored by Justice A.S. Bopanna.
Case Background
The petitioners, all OCI cardholders, were primarily students seeking admission to MBBS and other professional courses through the National Eligibility cum Entrance Test (NEET). Many of these students were born abroad but had lived and pursued their education in India for a significant period, sometimes up to 17 years. They had been relying on notifications issued in 2005 and 2009, which granted them parity with Non-Resident Indians (NRIs) in educational matters. This parity allowed them to compete for all seats, including those not specifically reserved for NRIs. However, a notification dated 4 March 2021, changed the rules, restricting OCI cardholders to only NRI or supernumerary seats, effectively excluding them from competing for general category seats.
The petitioners argued that this change violated their rights under Articles 14 and 21 of the Constitution of India, as it was a regressive step that curtailed rights they had been enjoying for years. They also contended that they were essentially residents of India, and should not be discriminated against based on their OCI status. The petitioners sought to quash the specific clauses of the 4 March 2021 notification that limited their admission rights.
Timeline
| Date | Event |
|---|---|
| 11 April 2005 | Notification issued granting OCI cardholders parity with NRIs in economic, financial, and educational fields. |
| 5 January 2009 | Notification issued allowing OCI cardholders to appear for All India Pre-Medical Test and other such tests for admissions. |
| 19 July 2018 | Meeting of the Committee of Secretaries where it was agreed that OCI cardholders may be treated at par with NRI, in the quota of NRI and they ought not to be eligible against seats meant for Indian citizens. |
| 4 March 2021 | Impugned notification issued, restricting OCI cardholders to only NRI or supernumerary seats and excluding them from general category seats. |
| 8 November 2021 | Supreme Court passed an interim order in WP 1397 of 2020 allowing eligible candidates to appear for counselling at par with Indian citizens. |
| 13 December 2022 | Minister’s reply in Rajya Sabha indicating the number of seats vacant in medical courses. |
| 3 February 2023 | Supreme Court delivers the final judgment. |
Course of Proceedings
The petitioners challenged the notification dated 04.03.2021 in the Supreme Court under Article 32 of the Constitution of India. The Union of India defended the notification, arguing that it was a policy decision to protect the interests of Indian citizens. The respondents contended that OCI cardholders were always intended to be treated at par with NRIs, and that the 2021 notification merely clarified the existing position. The Court had earlier passed an interim order on 8.11.2021, allowing OCI candidates to appear for counselling at par with Indian citizens, which was a general order applicable to all.
Legal Framework
The case primarily revolves around the interpretation of Section 7B(1) of the Citizenship Act, 1955, which empowers the Central Government to specify the rights of Overseas Citizens of India (OCI) cardholders. The relevant provisions are:
“7A. Registration of overseas citizens of India Cardholder. – (1) The Central Government may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, register as an Overseas Citizen of India Cardholder…”
“7B. Conferment of rights on Overseas Citizen of India Cardholder (1) Notwithstanding anything contained in any other law for the time being in force, an Overseas Citizen of India Cardholder shall be entitled to such rights [other than the rights specified under sub-section (2)] as the Central Government may, by notification in the Official Gazette, specify in this behalf.”
The court also considered the notifications issued under this section:
- Notification dated 11 April 2005: Granted OCI cardholders parity with NRIs in economic, financial, and educational fields.
- Notification dated 5 January 2009: Allowed OCI cardholders to appear for the All India Pre-Medical Test and other such tests.
- Notification dated 4 March 2021: Restricted OCI cardholders to only NRI or supernumerary seats, excluding them from general category seats.
The court also examined the interplay between these provisions and Articles 14 (equality before law) and 21 (protection of life and personal liberty) of the Constitution of India.
Arguments
The petitioners, represented by senior counsels Mr. P. Chidambaram and Mr. K.V. Viswanathan, argued that:
- Parity with NRIs: OCI cardholders have been treated on par with NRIs since 2005, especially in education. The 2009 notification allowed them to pursue various professions and appear for entrance exams like NEET.
- Residency and Contribution: Many OCI cardholders have lived in India for 16-17 years, contributing to the nation like any other citizen.
- Discrimination: The 2021 notification discriminates against OCI cardholders by restricting them to NRI seats, violating Articles 14 and 21 of the Constitution, which are available to all “persons,” not just citizens.
- Reasonable Classification: The classification between OCI cardholders and Indian citizens is not based on intelligible differentia and lacks a rational relation to the object sought to be achieved.
- Vacant Seats: Seats in medical colleges have remained vacant, proving that OCI admissions do not prejudice Indian citizens.
- Non-Retrogression: The 2021 notification violates the doctrine of non-retrogression by withdrawing rights that OCI cardholders have enjoyed for years.
- Legitimate Expectation: OCI cardholders had a legitimate expectation that their rights would continue, and the withdrawal of these rights is arbitrary and unreasonable.
- “Things Done”: OCI cardholders have taken steps, such as completing their education in India, based on the rights available to them, and these actions should be protected.
The respondents, represented by Additional Solicitor General Ms. Aishwarya Bhati, contended that:
- Sovereign Power: The State has the sovereign power to classify and regulate the rights of non-citizens, and courts should not interfere in such matters.
- Statutory Basis: The classification between Indian citizens and OCI cardholders is supported by statutory provisions, ensuring that limited educational seats are available to Indian citizens.
- Parity with NRIs: OCI cardholders were always intended to be treated on par with NRIs, not with Indian citizens, and the 2021 notification merely clarified this position.
- Policy Decision: The 2021 notification was a policy decision taken after comprehensive consultations to protect the interests of Indian citizens.
- Limited Rights: The rights of OCI cardholders are limited to the privileges conferred by the notifications issued under Section 7B of the Citizenship Act, 1955, and they cannot claim the fundamental rights available to citizens.
| Main Submissions | Sub-Submissions (Petitioners) | Sub-Submissions (Respondents) |
|---|---|---|
| OCI Cardholders’ Rights |
|
|
| Validity of 2021 Notification |
|
|
Issues Framed by the Supreme Court
The Supreme Court framed the following key issues:
- Whether the notification dated 04.03.2021, which restricts OCI cardholders to only NRI or supernumerary seats, is valid.
- Whether the said notification violates the rights of OCI cardholders under Articles 14 and 21 of the Constitution.
- Whether the said notification can be applied retrospectively to deny the right to education to OCI cardholders who were enjoying the same prior to the said notification.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues
| Issue | Court’s Decision | Reasoning |
|---|---|---|
| Validity of the 04.03.2021 Notification | Partially Valid | The court upheld the power of the government to issue notifications under Section 7B(1) of the Citizenship Act, 1955, but held that the specific provisions of the notification restricting OCI cardholders to NRI seats should apply prospectively. |
| Violation of Articles 14 and 21 | Partially Upheld | The court found that the notification, while not inherently violating Articles 14 and 21, had a retroactive effect that unfairly impacted OCI cardholders who had been relying on previous notifications. This retroactive effect was deemed arbitrary and discriminatory. |
| Retrospective Application | Invalid | The court held that the notification could not be applied retrospectively to deny the rights of OCI cardholders who had already been enjoying them. The court emphasized that the notification should only apply to OCI cardholders registered after 04.03.2021. |
Authorities
| Authority | Court | Legal Point | How the Authority was used |
|---|---|---|---|
| Maneka Gandhi vs. Union of India, (1978) 1 SCC 248 | Supreme Court of India | Unreasonable classification is not permissible under Article 14 | Cited to emphasize that Article 14 strikes at arbitrariness and ensures fairness and equality of treatment. |
| Navtej Singh Johar & Ors. vs. Union of India, (2018) 10 SCC 1 | Supreme Court of India | Doctrine of non-retrogression | Cited to argue that the State should not take measures that deliberately lead to retrogression on the enjoyment of rights. |
| LIC Vs. Consumer Education and Research Centre, (1995) 5 SCC 482 | Supreme Court of India | Public authorities must act reasonably and in public interest | Cited to emphasize that every activity of a public authority must be informed by reasons and guided by public interest. |
| Universal Import Agency & Ans. Vs. Chief Controller of Imports and Exports and Ors., (1961) 1 SCR 305 | Supreme Court of India | “Things done” before a supersession must be protected | Cited to support the argument that actions taken by OCI cardholders based on previous notifications should be protected. |
| Navjyoti Coop.Group Housing Society and Ors. Vs. Union of India & Ors., (1992) 4 SCC 477 | Supreme Court of India | Doctrine of legitimate expectation | Cited to argue that OCI cardholders had a legitimate expectation that their rights would continue. |
| J.K. Industry Ltd. vs. Union of India, (2007) 13 SCC 673 | Supreme Court of India | Doctrine of Ultra Vires | Cited to explain that subordinate legislation can be questioned if it is arbitrary or contrary to the statute. |
| State of Punjab and Ors. Vs. Ram Lubhaya Bagga & Ors., (1998) 4 SCC 117 | Supreme Court of India | Courts should not interfere with policy decisions | Cited by the respondents to argue that the court should not interfere with policy decisions unless they are arbitrary or violative of any law. |
| Izhar Ahmed Khan & Ors. vs. Union of India, AIR 1962 SC 1052 | Supreme Court of India | Status of citizenship can be affected by a statute | Cited by the respondents to argue that the status of citizenship is not a fundamental right and can be affected by a law. |
| Indo-China Steam Navigation Co.Ltd. vs. Jasjit Singh & Ors., AIR 1964 SC 1140 | Supreme Court of India | Article 19 is confined to citizens of India | Cited by the respondents to argue that Article 19 rights are not available to foreigners. |
| State of A.P. vs. Khudiram Chakma, (1994) Supple 1 SCC 615 | Supreme Court of India | Fundamental rights of foreigners are limited | Cited by the respondents to argue that fundamental rights of foreigners are limited to Article 21, and do not include rights under Article 19. |
| Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta & Ors., AIR 1955 SC 367 | Supreme Court of India | Power to expel foreigners is absolute | Cited by the respondents to argue that the government has an unfettered right to expel foreigners. |
| State of W.B. Vs. Anwar Ali Sarkar, AIR 1952 SC 75 | Supreme Court of India | Principle of reasonable classification | Cited by the respondents to argue that classification is permissible if it is based on a real and substantial distinction. |
| Budhan Choudhary Vs. State of Bihar, (1955) 1 SCR 1045 | Supreme Court of India | Conditions for permissible classification | Cited by the respondents to argue that classification must be based on intelligible differentia with a rational relation to the object. |
| State of Kerala Vs. N.M. Thomas, (1976) 2 SCC 310 | Supreme Court of India | Rule of parity and differentiation | Cited by the respondents to argue that equality means parity of treatment under parity of conditions. |
| K. Thimmappa Vs. Chairman, Central Board of Directors, (2001) 2 SCC 259 | Supreme Court of India | Mere differentiation is not discrimination | Cited by the respondents to argue that mere differentiation does not amount to discrimination if there is a reasonable relation to the object. |
Judgment
| Submission | Court’s Treatment |
|---|---|
| OCI cardholders are on par with NRIs and should be eligible for all seats. | The Court agreed that OCI cardholders were treated on par with NRIs for educational purposes based on previous notifications, but the 2021 notification was valid prospectively. |
| The 2021 notification violates Articles 14 and 21. | The Court held that while the notification itself does not violate Articles 14 and 21, its retroactive effect on OCI cardholders was discriminatory. |
| The notification violates the doctrine of non-retrogression. | The Court acknowledged the doctrine but stated that it depends on the nature of the rights involved. In this case, the rights of OCI cardholders were statutory, and the state has a duty to balance the interests of citizens and non-citizens. |
| The notification violates the principle of legitimate expectation. | The Court agreed that OCI cardholders had a legitimate expectation based on previous notifications and the government should have considered the consequences of withdrawing these rights. |
| The notification is arbitrary and without application of mind. | The Court agreed that the notification was arbitrary and without application of mind as it did not consider the impact on OCI cardholders who had been relying on previous notifications. |
| The classification between OCI cardholders and Indian citizens is not based on intelligible differentia. | The Court did not find the classification to be inherently flawed but held that the retroactive application of the notification was not justified. |
How each authority was viewed by the Court?
The Court considered the authorities cited by both sides. The Court relied on Maneka Gandhi vs. Union of India [CITATION] to emphasize that Article 14 strikes at arbitrariness. The Court also considered Navtej Singh Johar & Ors. vs. Union of India [CITATION] regarding the doctrine of non-retrogression, but held that it was not applicable in the present case as the rights of OCI cardholders were statutory. The Court used Universal Import Agency & Ans. Vs. Chief Controller of Imports and Exports and Ors. [CITATION] to support the argument that actions taken by OCI cardholders based on previous notifications should be protected. The Court also considered Navjyoti Coop.Group Housing Society and Ors. Vs. Union of India & Ors. [CITATION] on the doctrine of legitimate expectation, agreeing that OCI cardholders had a legitimate expectation that their rights would continue. The Court found that the 2021 notification was arbitrary and without application of mind, in light of the principle laid down in J.K. Industry Ltd. vs. Union of India [CITATION]. The authorities cited by the respondents were also considered, but the Court held that they were not applicable on all fours, given the context of the case.
What weighed in the mind of the Court?
The Supreme Court’s decision was influenced by several factors:
- Retroactive Impact: The Court was particularly concerned about the retroactive impact of the 2021 notification, which abruptly changed the rules for OCI cardholders who had been pursuing their education in India based on previous notifications.
- Non-Application of Mind: The Court noted that the government did not demonstrate that it had considered the consequences of the notification on OCI cardholders who had already been relying on the previous notifications.
- Statutory Rights: While acknowledging that the rights of OCI cardholders were statutory, the Court emphasized that these rights should not be taken away arbitrarily.
- Fairness and Equality: The Court aimed to balance the interests of Indian citizens with the rights of OCI cardholders, ensuring that the latter were not unfairly discriminated against.
- Vacant Seats: The Court considered that medical seats were remaining vacant, which indicated that OCI cardholder admissions did not prejudice Indian citizens.
- OCI Cardholders’ Connection to India: The Court recognized that many OCI cardholders had a strong connection to India, having lived and studied in the country for many years.
The Court’s sentiment was that while the government has the power to make policy changes, such changes should not be implemented in a manner that is arbitrary and unfair to those who have relied on previous policies.
| Reason | Sentiment | Percentage |
|---|---|---|
| Retroactive Impact of the Notification | Negative | 30% |
| Non-Application of Mind by the Government | Negative | 25% |
| Impact on OCI Cardholders’ Education | Negative | 20% |
| Statutory Rights of OCI Cardholders | Neutral | 10% |
| Fairness and Equality | Positive | 10% |
| Vacant Seats | Neutral | 5% |
| Ratio | Percentage |
|---|---|
| Fact | 60% |
| Law | 40% |
Logical Reasoning:
The Court considered alternative interpretations, such as upholding the notification in its entirety, but rejected them because they would have unfairly impacted OCI cardholders who had been relying on previous notifications. The final decision was reached by balancing the government’s policy objectives with the rights and expectations of OCI cardholders.
The Court’s decision was based on the following reasons:
- The government has the power to issue notifications under Section 7B(1) of the Citizenship Act, 1955.
- The 2021 notification was intended to consolidate previous notifications but had a retroactive impact.
- The retroactive impact was unfair to OCI cardholders who had been relying on previous notifications.
- The government did not demonstrate an application of mind to the consequences of the notification.
- The notification should apply prospectively to new OCI cardholders.
The Court quoted from the judgment:
“…the right which had been conferred and existed had not affected Indian citizens so as to abruptly deny all such rights. The right was only to compete.”
“…the retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided.”
“…the provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 i.e. the date of the notification and who seek for a registration as OCI cardholder from that date…”
There were no dissenting opinions in this case; both judges on the bench agreed on the final outcome and reasoning.
Key Takeaways
- The Supreme Court upheld the rights of OCI cardholders who had been enjoying parity with NRIs in educational matters before the 4 March 2021 notification.
- The Court ruled that the 4 March 2021 notification would apply prospectively, meaning that it would only affect OCI cardholders registered after that date.
- OCI cardholders who had been relying on the previous notifications were allowed to continue to enjoy the same rights, including the right to compete for general category seats in educational institutions.
- The Court emphasized that government policy decisions should not be implemented retroactively in a manner that is arbitrary and unfair to those who have relied on previous policies.
- The ruling highlights the importance of protecting legitimate expectations and ensuring that government actions are based on application of mind and fairness.
Directions
The Supreme Court directed that the impugned portion of the notification dated 04.03.2021, which provides for supersession of the notifications dated 11.04.2005, 05.01.2007, and 05.01.2009, and clause 4(ii), its proviso, and Explanation (1) thereto, shall operate prospectively in respect of OCI cardholders who have secured the same subsequent to 04.03.2021. The Court further directed that the petitioners and similarly placed OCI cardholders will be entitled to the rights and privileges that had been conferred on them earlier, and their participation in the selection process and subsequent actions based on interim orders will stand regularized.
Development of Law
The ratio decidendi of this case is that while the government has the power to modify the rights of OCI cardholders, such modifications cannot be applied retroactively to the detriment of those who have been relying on previous policies. This judgment clarifies that the rights of OCI cardholders are statutory, but they must be protected from arbitrary and unfair changes. The decision also emphasizes the importance of the doctrine of legitimate expectation and the need for the government to demonstrate an application of mind when making policy changes that affect the rights of individuals. This case also highlights the need to balance the interests of citizens with the rights of non-citizens, ensuring that the latter are not unfairly discriminated against.
Conclusion
In conclusion, the Supreme Court’s judgment in Anushka Rengunthwar vs. Union of India is a significant victory for OCI cardholders, particularly those who have been residing and studying in India. The Court’s decision ensures that these individuals can continue to pursue their educational goals without being unfairly discriminated against. The ruling underscores the importance of fairness, legitimate expectations, and the need for the government to act responsibly when making policy changes that affect the rights of individuals. The Court’s decision also highlights the need to balance the interests of Indian citizens with the rights of non-citizens.