Anushka Rengunthwar & Ors. vs Union of India & Ors.

Citizenship Act, 1955 – ss.7A, 7B(1) – Right of the Overseas Citizens of India (OCI) Cardholders – Held: 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is a midway right in the absence of dual citizenship – When a statutory right was conferred and such right was being withdrawn through a notification, the process for withdrawal is required to demonstrate that the action taken is reasonable and has nexus to the purpose – It should not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 – Citizenship Amendment Act, 2003.

Citizenship Act, 1955 – s.7B(2) – Plea of the petitioners that since s.7B(2) does not exclude the right u/Article 14, it is available to be invoked and discrimination contemplated in the impugned notification to exclude the OCI Cardholders should be struck down – Held: Article 14 can be invoked and contend discrimination only when persons similarly placed are treated differently – The OCI Cardholders being a class by themselves cannot claim parity with the Indian citizens, except for making an attempt to save the limited statutory right bestowed – Constitution of India – Article 14. Partly allowing the petitions/appeals, the Court

HELD: 1.1 Most of the petitioners are all persons who are either of full age or are yet to reach the full age but are all children, whose both parents or one of them are Indian citizens. All the petitioners are registered as Overseas Citizens of India cardholders is not in dispute. The right to which they are making a claim is conferred under Section 7B(1) to Act, 1955. The right to education which was conferred under the notification dated 11.04.2005, in parity with the Non-Resident Indians is due to the fact that the Non-Resident Indians which is a separate class, had such right similar to that of the Indian citizens in matters relating to education. It is based on such right being conferred as far back as in the year 2005, the OCI Cardholders were taking part ORS.

in the process of selections conducted for undertaking educational courses in India. Such benefit was extended to appear for the All India Pre-Medical Test or such other tests to make them eligible for admission in pursuance of the provisions contained in the relevant acts, through the notification dated 05.01.2009. The said benefit is being enjoyed by all the OCI Cardholders in the same manner as the Non-Resident Indians were enjoying along with the Indian citizens. In that circumstance, most of such OCI Cardholders have been pursuing their entire educational career in India. The extracted details would indicate that in all the cases the petitioners have studied for more than six years in India and in most of the cases, almost the entire educational career up to the stage of the qualifying examination for the Pre-Medical Test has been undertaken in India. Apart from the specific cases noted herein, there are also petitioners/persons who had become citizens of a foreign country for compelling reasons, but hold benefit of OCI card. This would demonstrate that though in terms of law, the petitioners were ‘foreigners’ due to the incident of birth in a foreign country or such other compelling circumstances, they continue to remain in India and to pursue their education and had fully justified the mid-path benefit given to them based on the OCI card. [Paras 38, 39, 41 and 42][287-E; 288-C-F; 291A-C]

1.2 The right which was bestowed through the notification dated 11.04.2005 and 05.01.2009 insofar as the educational parity, including in the matter of appearing for the All India Pre-Medical Test or such other tests to make them eligible for admission has been completely altered. Though the notification ex facie may not specify retrospective application, the effect of superseding the earlier notifications and the proviso introduced to clause 4(ii) would make the impugned notification dated 04.03.2021 ‘retroactive’ insofar as taking away the assured right based on which the petitioners and similarly placed persons have altered their position and have adjusted the life’s trajectory with the hope of furthering their career in professional education. [Para 44][292F-G]

1.3 Article 14 of the Constitution can be invoked and contend discrimination only when persons similarly placed are treated differently and in that view the OCI Cardholders being a class by themselves cannot claim parity with the Indian citizens, except for making an attempt to save the limited statutory right bestowed. To that extent certainly the fairness in the procedure adopted has a nexus with the object for which change is made and the application of mind by the Respondent No.1, before issuing the impugned notification requires examination. [Para 45][293-A-B]

1.4 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. Except for the bare statement in the objection 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. There are no details made available about the consideration made as to, over the years how many OCI cardholders have succeeded in getting a seat after competing in the selection process by which there was denial of seats to Indian Citizens though they were similar merit-wise. [Paras 46, 47][293-C-D; 294-B-C]

1.5 It is sought to be pointed out on behalf of the petitioners that the explanation put forth does not indicate the true State of Affairs in as much as, seats have still remained vacant in the previous years. It is no doubt true that as contended by the learned Additional Solicitor General, the vacancies will remain due to several factors such as reservation of seats, other permutations and combinations as also the preferred and non-preferred colleges. Be that as it may, the dire need to take away the bestowed right by applying the impugned notification even to young students who technically though are not citizens of this country but were provided certain rights in such manner would not be justified as it does not demonstrate nexus to the object sought to be achieved. Policy decision for the future, certainly is ORS.

within the domain of Respondent No.1 based on the sovereign powers of the State. Even on that aspect all that has been stated is that the decision to issue the notification was taken in the meeting of Secretaries held on 19.07.2018 without indicating the nature of deliberations. Therefore, in that perspective, keeping in view the present position, the decision to supersede the earlier notifications and take away the right of OCI Cardholders in whose favour such right had accrued and they have acted in a manner to take benefit of such right should not have been nullified without reference to the consequences. 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 implication. [Para 48][295-D-H; 296-A]

1.6 It is evident that the object of providing the right in the year 2005 for issue of OCI cards was in response to the demand for dual citizenship and as such, as an alternative to dual citizenship which was not recognised, the OCI card benefit was extended. If in that light, the details of the first petitioner taken note is analysed in that context, though the option of getting the petitioner No.1 registered as a citizen under Section 4 of Act, 1955 by seeking citizenship by descent soon after her birth or even by registration of the citizenship as provided under Section 5 of Act, 1955, was available in the instant facts to her parents, when immediately after the birth of petitioner No.1 the provision for issue of OCI cards was statutorily recognised and under the notification the right to education was also provided, the need for parents of petitioner No.1 to make a choice to acquire the citizenship by descent or to renounce the citizenship of the foreign country and seek registration of the Citizenship of India did not arise to be made, since as an alternative to dual citizenship the benefit had been granted and was available to petitioner No.1 and the entire future was planned on that basis and that situation continued till the year 2021. Further, as on the year 2021 when the impugned notification was issued the petitioner No.1 was just about 18 years i.e., full age and even if at that stage, the petitioner was to renounce and seek for citizenship of India as provided under Section 5(1)(f)(g), the duration for such process would disentitle her the benefit of the entire education course from pre-school stage pursued by her in India and the benefit for appearing for the PreMedical Test which was available to her will be erased in one stroke. Neither would she get any special benefit in the country where she was born. Therefore in that circumstance when there was an assurance from a sovereign State to persons like that of the petitioner No.1 in view of the right provided through the notification issued under Section 7B(1) of Act, 1955 and all ‘things were done’ by such Overseas Citizens of India to take benefit of it and when it was the stage of maturing into the benefit of competing for the seat, all ‘such things done’ should not have been undone and nullified with the issue of the impugned notification by superseding the earlier notifications so as to take away even the benefit that was held out to them. [Paras 50, 51][296-G-H; 297-A-F]

1.7 On the face of it the impugned notification not saving such accrued rights would indicate non application of mind and arbitrariness in the action. Further in such circumstance when the stated object was to make available more seats for the Indian Citizens and it is demonstrated that seats have remained vacant, the object for which such notification was issued even without saving the rights and excluding the petitioners and similarly placed OCI Cardholders with the other students is to be classified as one without nexus to the object. As taken note earlier during the course this order, the right which was granted to the OCI cardholders in parity with the NRIs was to appear for the PreMedical Entrance Test along with all other similar candidates i.e. the Indian citizens. In a situation where it has been demonstrated that the petitioner No.1 being born in the year 2003, has been residing in India since 2006 and has received her education in India, such student who has pursued her education by having the same ‘advantages’ and ‘disadvantages’ like that of any other students who is a citizen of India, the participation in the Pre-Medical Entrance Test or such other Entrance Examination would be on an even keel and there is no greater advantage to the petitioner No.1 merely because she was born in California, USA. Therefore, the right which had been conferred and existed had not affected Indian citizens so as to abruptly deny ORS.

all such rights. The right was only to compete. It could have been regulated for the future, if it is the policy of the Sovereign State. No thought having gone into all these aspects is crystal clear from the manner in which it has been done. [Para 52][297-F-H; 298-A-C]

1.8 In the above circumstance, keeping in view, the object with which the Act, 1955 was amended so as to provide the benefit to Overseas Citizen of India and in that context when rights were given to the OCI cardholders through the notifications issued from time to time, based on which the OCI cardholders had adopted to the same and had done things so as to position themselves for the future, the right which had accrued in such process could not have been taken away in the present manner, which would act as a ‘retroactive’ notification. Therefore, though the notification ex-facie does not specify retrospective operation, since it retroactively destroys the rights which were available, it is to be ensured that such of those beneficiaries of the right should not be affected by such notification. Though the rule against retrospective construction is not applicable to statutes merely because a part of the requisite for its action is drawn from a time antecedent to its passing, in the instant case the rights were conferred under the notification and such rights are being affected by subsequent notification, which is detrimental and the same should be avoided to that extent and be allowed to operate without such retroactivity. It is not retrospective inasmuch as it does not affect the OCI Cardholders who have participated in the selection process, have secured a seat and are either undergoing or completed the MBBS course or such other professional course. However, it will act as retroactive action to deny the right to persons who had such right which is not sustainable to that extent. The goal post is shifted when the game is about to be over. The retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided. [Paras 53, 54][298-D-H; 299-A]

1.10 Though the impugned notification dated 04.03.2021 is based on a policy and in the exercise of the statutory power of a Sovereign State, 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 since at that juncture the parents would have a choice to either seek for citizenship by descent or to continue as a foreigner in the background of the subsisting policy of the Sovereign State. The respondent No.1 in furtherance of the policy of the Sovereign State has the power to pass appropriate notifications as contemplated under Section 7B(1) of the Citizenship Act, 1955, to confer or alter the rights as provided for therein. However, when a conferred right is withdrawn, modified or altered, the process leading thereto should demonstrate application of mind, nexus to the object of such withdrawal or modification and any such decision should be free of arbitrariness. In that background, the impugned notification dated 04.03.2021 though competent under Section 7B(1) of Act, 1955 suffers from the vice of nonapplication of mind and despite being prospective, is in fact ‘retroactive’ taking away the rights which were conferred also as a matter of policy of the Sovereign State. Hence, the notification being sustainable prospectively, it is hereby declared that the impugned portion of the notification which provides for supersession of the notifications dated 11.04.2005, 05.01.2007 and 05.01.2009 and the 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. [Paras 57-58][299-F-H; 300-A-B]

Maneka Gandhi v. Union of India (1978) 1 SCC 248 : [1978] 2 SCR 621; Navtej Singh Johar & Ors. v. Union of India Thr. Secretary Ministry of Law and Justice (2018) 10 SCC 1 : [2018] 7 SCR 379; LIC v. Consumer Education and Research Centre (1995) 5 SCC 482 : [1995] 1 Suppl. SCR 349; Universal Imports Agency & Ans. Vs. Chief Controller of Imports and Exports and Ors. [1961] 1 SCR 305; Navjyoti Coop.Group Housing Society and Ors. v. Union of India & Ors. (1992) 4 SCC 477 : [1992] 1 Suppl. SCR 709; J. K. Industry Ltd. v. Union of India (2007) 13 SCC 673 : [2007] 12 SCR 136; State of Punjab and Ors. v. Ram Lubhaya Bagga & Ors. (1998) 4 SCC 117 : [1998] 1 SCR 1120; ORS.

Izhar Ahmed Khan & Ors. v. Union of India AIR 1962 SC 1052 : [1962] Suppl. SCR 235; Indo-China Steam Navigation Co.Ltd. vs. Jasjit Singh & Ors. AIR 1964 SC 1140 : [1964] SCR 594; State of A.P. v. Khudiram Chakma (1994) Supple 1 SCC 615 : [1993] 3 SCR

401; Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors. AIR 1955 SC 367 : [1955] SCR 1284; State of W.B. v. Anwar Ali Sarkar AIR 1952 SC 75 : [1952] SCR 284; Budhan Choudhary v. State of Bihar [1955] 1 SCR 1045;

State of Kerala v. N.M. Thomas (1976) 2 SCC 310 : [1976] 1 SCR 906; K. Thimmappa v. Chairman, Central Board of Directors (2001) 2 SCC 259 : [2000] 5 Suppl. SCR 368 – referred to.