A Supreme Court Bench of Justice AS Bopanna and Justice CT Ravikumar has held that the 2021 notification taking away the rights of Overseas Citizens of India (OCI) students to apply for general seats in All India Examinations will apply only prospectively from the date of the notification.

In that context, it was held that "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."

Senior Counsel P Chidambaram, Senior Counsel KV Viswanathan, and Counsel Kunal Cheema were among the counsels appearing for the petitioner side. ASG Aishwarya Bhati appeared for the respondent side.

In this case, a batch of petitions was filed by OCI students, challenging a 2021 notification issued by the Ministry of Home Affairs. The notification stated that OCI students could only apply to NRI seats or supernumerary seats for all India entrance tests, which barred them from applying to seats exclusively reserved for Indian students.

On hearing the parties, the Court noted that "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 When a statutory right was conferred and such right is being withdrawn through a notification, the process for withdrawal is required to demonstrate that the action taken is reasonable and has nexus to the purpose.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."

In furtherance of the same, the Court observed that "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."

Subsequently, the Court observed that 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 were being affected by subsequent notification, which is detrimental and should be avoided to that extent and be allowed to operate without such retroactivity.

In light of the same, the Court noted 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 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."

Therefore, the Court held that the provisions of the impugned notification 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. Respondent No. 1 was directed to pass appropriate notifications as contemplated under Section 7B(1) of the Citizenship Act, 1955, to confer or alter the rights as provided.

In a similar context, it was further held 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."

Cause Title: Anushka Rengunthwar & Ors. v. Union of India & Ors.

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