ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS.

A Navtej Singh Johar & Ors. (supra), though the Doctrine of Progressive Realisation of Rights is referred and has been stated that there must not be any regression of rights and in a progressive and an ever-improving society there is no place for retreat, the society has to march ahead that the state should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the constitution or B otherwise, we are of the opinion that the said observation would depend on the nature of the rights regarding which a consideration is made in appropriate cases. In the instant facts, the said observation cannot be of any assistance to the petitioners since the right though had been conferred earlier, such rights, insofar as the petitioners are concerned only a C statutory right as they are admittedly not citizens of this country. Though certain rights under the statute were given, the state has a duty to balance the interests of its citizens and the non-citizens when a change is required to be made. However as to whether such consideration has been made in a just and proper manner with reference to all aspects is another aspect which we will advert to in the course of this judgment, but to contend that it amounts to retrogression may not arise in the present context.

36Copy pinpoint36. Insofar as the remaining decisions relied on by the petitioners as also the learned Additional Solicitor General, a cumulative perusal of the same would indicate that though this court has asserted with regard to the legitimate expectation, right not to be discriminated keeping in view Article 14 of the Constitution etc., they are all essentially in the context while dealing with the rights of a citizen against the State or in a situation where a dispute was between a citizen against another citizen of this country and in that regard when the constitutional principles were invoked. Further, the decisions relied on by the learned Additional Solicitor General would indicate that this Court while considering the right claimed by a foreigner or who is not a citizen of this country has dealt with the matter differently and declined to interfere and grant any relief. If in that light, the matter is looked into, when there is no dispute to the fact that the petitioners answer the definition of “foreigners” as defined under the Foreigners Act, the said decisions relied upon by the learned senior counsel for the petitioner would not apply on all fours. But keeping in view the nature of right claimed by the petitioners as OCI Cardholders which is a status accorded despite being foreigners and the background circumstance which led to the situation the spirit of the principles laid will have to be borne in mind while making further consideration since

ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & 287 ORS.

the principles laid down therein disapproving non-application of mind, arbitrariness etc. will hold good in the present circumstance as well. In the instant facts the statutory as OCI Cardholder subsists and it is in that light the validity of notification is to be tested which certainly can be raised by the petitioner and be addressed by this Court.

37Copy pinpoint37. Therefore, with the said understanding on the aspect of the applicability of the said decisions concluded as above, in the facts and circumstances arising in the instant case and the issue which is to be taken note and answered by us, the matter requires further consideration. No doubt, as pointed out by the learned Additional Solicitor General, Section 2(a) of the Foreigners Act, 1946 defines a ‘foreigner’ to mean a C person who is not a citizen of India. If the matter had rested at that, there was no difficulty. In the instant case, there is a different dimension which arises for consideration. The circumstance in which the petitioners have come to be classified as ‘foreigners’ and the right which was conferred on them is to be kept in view. D

38Copy pinpoint38. To put the matter in perspective and understand the concept based on which the rights are being claimed by the petitioners, it is necessary to advert to the fact situation and the law governing them despite being classified as ‘foreigner’. 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. In E the changing world and in an era where the concept of multinationals providing employment to Indian citizens had increased, the incident of birth of the children taking place in a country outside India had also increased. In that circumstance, successive governments had to bestow their attention to this aspect of the matter to provide better rights to such persons, who, though in the technical sense where ‘foreigners’, not being citizens of this country, yet had a ‘connect’ with this country. These were cases where though the umbilical cord with the biological mother had snapped in a foreign country, the umbilical connections with the country continue to remain intact as the entire family including the grandparents would be in India and the parents were Indian citizens in most cases. In that view, having considered all these aspects of the matter, despite such persons not having the benefit of citizenship as provided under Part II of the Constitution through Articles 5 to 8 thereof and there being no scope for dual citizenship, certain rights were created H

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A under Act, 1955 which had come into force based on the provision in Article 11 of the Constitution of India.

39Copy pinpoint39. In that regard, in a concept where the ‘dual citizenship’ was not recognised, such persons as like that of the petitioners were considered as Overseas Citizens of India card holders as defined under Section B 2(ee) of Act, 1955. The Act, 1955 through the amendment Act 6 of 2004 brought certain rights and through substitution of Section 7A to 7D the manner of registration of Overseas Citizen of India card holder; renunciation of citizenship and cancellation of registration were provided for. In the cases, on hand, the fact that all the petitioners are registered C 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 which has been extracted and noted above. 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 D 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 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 E 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. F

40Copy pinpoint40. In the said background it is necessary to note that as per the information furnished relating to the status of the petitioners in W.P.(C) No.891 of 2021 which is taken as an instance for demonstrating the situation of their affinity with India and the number of years they have been in India. The details are as provided in Annexure P/2 which is as G hereunder: -

ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & 289 ORS.

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ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & 291 ORS.

41Copy pinpoint41. The above 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. The manner in which they have conducted themselves by being students in India would indicate that in addition to having the umbilical connection with the country, they being aware of the right conferred through the notifications dated 11.04.2005 and 05.01.2009 had positioned themselves to further their professional career by making a choice of their profession and undertaking the preparation for the same. D This was based on what was held out to that class of Overseas Citizens. In fact, their entire educational career has been of the same standard, with the same ‘advantages’ and ‘disadvantages’ as has been the case with the students who are Indian citizens. In such situation, though in the strict term of the word ‘legitimate expectation’, it may not fall, a statutory right conferred had sown the seed of hope recognising the affiliation to this country, though they were not citizens in the strict sense.

42Copy pinpoint42. Hence keeping this situation in the backdrop, the manner in which the impugned notification would affect the petitioners and the similarly placed citizens will have to be taken note to examine whether the withdrawal of the conferred right will be justified. It is no doubt true as contended by the learned Additional Solicitor General, the right available to the OCI Cardholders is only the statutory right based on the right that is conferred through a notification in terms of Section 7B(1) of Act, 1955. Sub-section (2) thereto specifically indicates the right that cannot be conferred even under sub-section (1) through a notification. Though a notification issued under the sub-delegated power can be withdrawn, modified or altered, the effect of the impugned notification dated 04.03.2021 needs to be noted to consider as to whether the same is wholly justified or as to whether any portion of it falls foul of the object for which it is made and the manner in which it has been modified. H

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43Copy pinpoint43. To the extent as noticed, the right being conferred under Section 7B(1) of Act 1955 through the impugned notification dated 04.03.2021 if it was for the first time conferring such right, the petitioners could not have made any grievance. In fact, a perusal of the notification at first blush gives an impression that merely the earlier notifications dated 11.04.2005, 05.01.2007 and 05.01.2009 have been consolidated to crystallize all the rights to be provided under one notification. However, a closer perusal of the said notification which has been extracted above in the course of this judgment would indicate that clause 4(ii) of the notification though provides the right to appear for the All India Entrance Test, which was hitherto available to make them eligible for admission in parity with Non-Resident Indians has now restricted the eligibility for admission only against the seats which are reserved for Non-Resident Indians. In a situation where there is a certain marked economic difference between OCI Cardholders and Non-Resident Indians to acquire such seats, the OCI Cardholders claim to be at a disadvantage and the right which was available to them earlier has stood altered to their detriment. D Even if that be so, if the said right which is conferred in modification of the right which had been bestowed earlier was made with prospective effect, certainly the petitioners and the similarly placed persons based on the contentions which are at present urged herein could not have been heard to complain in a proceeding of this nature and would have been a matter to be considered by the executive based on the claim of the Indian diaspora.

44Copy pinpoint44. However, what is necessary to be taken note is that 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.

45Copy pinpoint45. The learned senior counsel for the petitioners would in that context contend that since sub-section (2) to Section 7B of Act, 1955 H does not exclude the right under Article 14 of the Constitution, it is

ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & 293 ORS.

available to be invoked and such discrimination contemplated in the notification to exclude the OCI Cardholders should be struck down. 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.

46Copy pinpoint46. As noted, the right of the OCI Cardholders is a mid-way 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. To examine this aspect, in addition to the contentions urged by the learned Additional Solicitor General we have also taken note of the objection statement filed with the writ petition. Though detailed contentions are urged with regard to the status of a citizen and the sovereign power of the State, as already noted, in these petitions the sovereign power has not been questioned but the manner in which it is exercised in the present circumstance is objected. The contention of learned Additional Solicitor General is that the intention from the beginning was to grant parity to OCI Cardholders only with NRIs. On that aspect as already noted above we have seen the nature of the benefit that had been extended to the petitioners and the similarly placed petitioners under the notifications of the year 2005, 2007 and 2009. The further contention insofar as equating the OCI Cardholders to compete only for the seats which are reserved for NRIs and to exclude the OCI Cardholders for admission against any seat reserved exclusively for the Indian citizens, across the board, even to the persons who were bestowed the right earlier, it is stated that the rationale is to protect the rights of the Indian citizens in such matters where State may give preference to its citizens vis-à-vis foreigners holding OCI Cards. It is further averred in the counter that number of seats available for medical and engineering courses in India are very limited and that it does not fully cater to the requirement of even the Indian citizens. It is therefore contended that the right to admission to such H

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A seats should primarily be available to the Indian citizens instead of foreigners, including OCI Cardholders.

47Copy pinpoint47. 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. Per contra, the learned senior counsel for the petitioners has placed reliance on the statement made by the Hon’ble Minister in reply to the question raised in the Rajya Sabha as recent as on 13.12.2022, and an extract to indicate the details is produced along with I.A. No.4763 of 2023 for additional documents in W.P.(C) No.246 of 2022. The details shown are as follows:- D “STATEMENT REFERRED TO IN REPLY TO RAJYA SABHA STARRED QUESTION NO.64* FOR 13 TH DECEMBER, 2022 (a) to (c) As per information received from National Testing Agency (NTA), the details of number of students who appeared E for the NEET-UG examination in the last three years are as under:- Year 2022 2021 2020 Number of 18,72,343 16,14,777 15,97,435 students registered F Number of 17,64,571 15,44,273 13,66,945 students appeared

The details of number of Undergraduate (UG)/Postgraduate (PG) seats available during the admission process of last three years G are as under:-

ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & 295 ORS.

According to National Medical Commission (NMC), the A number of MBBS & PG seats vacant from 2018-19 to 2021- 22, year wise is as under:-

(Emphasis Supplied) D

48Copy pinpoint48. Hence, 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 E 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 F decision for the future, certainly is 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 G 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 H

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A 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.

49Copy pinpoint49. To put the matter in its context for better appreciation of the mischief caused by the impugned notification and the manner in which it B would irreversibly alter the situation, to which aspect there is non- application of mind by respondent No.1, it would be appropriate to refer to the existing facts of an individual petitioner. To demonstrate this aspect we shall take the details of the first petitioner in W.P.(C) No.891 of 2021 as an instance to demonstrate the case in point. From the tabular statement supra, it is noted, C (a) She was born on 31.12.2003 in California, USA. (b) Both her parents are Indian Nationals. (c) She has come to India in the year 2006

D (d) Has lived thereafter in India for 15 years.” (e) Presently she is at Pune, Maharashtra, (f) pursued her entire educational career in India (g) Passed the 12th standard which is the qualifying examination to appear for the Medical Entrance also in India. E As on the year of birth in 2003 the Citizenship Amendment Act, 2003 was brought in to introduce Section 7A of Act, 1955 w.e.f. 06.12.2004. The said amendment was based on the recommendations of a High-Level Committee on Indian diaspora. The Government of India decided to register the Persons of Indian Origin (PIO) of a certain category as specified in Section 7A of Act, 1955 as Overseas Citizens of India. The OCI scheme was introduced with the issue of notification of 2005 which is in the background of the demands for dual citizenship by the Indian diaspora and the concept of dual citizenship is not recognized.

50Copy pinpoint50. Therefore 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 hereinabove 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

ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & 297 ORS.

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.

51Copy pinpoint51. 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 Pre-Medical 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. F

52Copy pinpoint52. Therefore, 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 G 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 Pre- H

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A Medical 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, B 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 all such rights. The right C 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.

53Copy pinpoint53. In the above circumstance, keeping in view, the object with which the Act, 1955 was amended so as to provide the benefit to Overseas D 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.

54Copy pinpoint54. We note that 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 H

ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & 299 ORS.

is about to be over. Hence we are of the view that the retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided.

55Copy pinpoint55. Therefore in the factual background of the issue involved, to sum up, it will have to be held that 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.

56Copy pinpoint56. In light of the above, it is held that 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. D 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 E Act, 1955 suffers from the vice of non-application 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.

57Copy pinpoint57. Hence, the notification being sustainable prospectively, we hereby declare 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.

58Copy pinpoint58. We further hold that the petitioners in all these cases and all other similarly placed OCI cardholders will be entitled to the rights and privileges which had been conferred on them earlier to the notification dated 04.03.2021 and could be availed by them notwithstanding the exclusion carved out in the notification dated 04.03.2021. The participation of the petitioners and similarly placed OCI cardholders in the selection H

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A process and the subsequent action based on the interim orders passed herein or elsewhere shall stand regularised.

59Copy pinpoint59. Notwithstanding the fact that we have held the impugned notification dated 04.03.2021 to be valid with specific prospective effect in view of the power available to respondent No.1 under Section 7B(1) B of Act, 1955, keeping in perspective the wide ramification it may have in future also on the Indian diaspora and since it is claimed to be based on the policy decision of the Sovereign State, we expect that the same would be examined in the higher echelons of the Executive with reference to the rights already created.

60Copy pinpoint60. In terms of the above, all these petitions/ appeals are allowed in part to the above extent with no order as to costs.

61Copy pinpoint61. Pending application, if any, stands disposed of.

Divya Pandey Petitions/appeals partly allowed. D (Assisted by : Roopanshi Virang, LCRA)