ANUSHKA RENGUNTHWAR vs. UNION OF INDIA

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL/APPELLATE JURISDICTION WRIT PETITION (C) NO.891 OF 2021 Anushka Rengunthwar & Ors. .… Petitioner(s) Versus Union of India & Ors. …. Respondent(s) WITH Writ Petition (C) No.503/2022, Writ Petition (C) No.35/2022, Writ Petition (C) No.246/2022, Writ Petition (C) No.155/2022, Writ Petition (C) No.347/2022, Writ Petition (C) No.380/2022, Writ Petition (C) No.322/2022, Writ Petition (C) No.629/2022, Writ Petition (C) No.740/2022, Writ Petition (C) No.706/2022, Writ Petition (C) No.741/2022, Civil Appeal No. 812/2023 (arising out of SLP(C) No. 16306/2022) Signature Not Verified Digitally signed by Nisha Khulbey Date: 2023.02.03 17:11:26 IST Reason: Writ Petition (C) No.22/2022, Writ Petition (C) No.1070/2022, 1 Writ Petition (C) No.1230/2021, Writ Petition (C) No.1186/2021, Writ Petition (C) No.838/2022, Writ Petition (C) No.1032/2021, Writ Petition (C) No.961/2022, Writ Petition (C) No.1123/2021, Writ Petition (C) No.1128/2021, Writ Petition (C) No.1125/2021, Writ Petition (C) No.1150/2021, Writ Petition (C) No.1129/2021, Writ Petition (C) No.1141/2021, Writ Petition (C) No.1143/2021, Writ Petition (C) No.1149/2021, Civil Appeal No. 811/2023 (arising out of SLP(C) No. 17153/2021) Civil Appeal No. 810/2023 (arising out of SLP(C) No. 17158/2021) Writ Petition (C) No.1174/2021 and Writ Petition (C) No.34/2023 J U D G M E N T 1. The petitioners in all these petitions are the Overseas Citizens of India card holders. They are all students who have

petitioners are aspiring to become Doctors by pursuing the MBBS course by securing admission through NEET selection 2 process and thereafter the post-graduation as also the super specialty in the field of medicine. Some of them are also seeking to pursue post-graduation and also a super specialty. For the purpose of narration of facts, the averments as put forth in W.P.(C) No.891 of 2021 which was taken as the lead case is noted. The petitioners contend that they have been putting in all efforts and were preparing to appear for the NEET-UG examinations based on the right which was available to them under the notifications dated 11.04.2005 and 05.01.2009. Through the said notifications, the Overseas Citizens of India (‘OCI’ for short) cardholders were given the right of parity with Non-Resident Indians (‘NRIs’ for short) in respect of the facilities as notified, including in the field of education, who in turn had the parity with Indian Citizens. Through the notification dated 05.01.2009, the said right to education in India was also extended further, to appear for the All India Pre-Medical Test or such other tests to make them eligible for admission in pursuance to the provisions contained in the relevant acts. In view of such right being extended to the OCI Cardholders by respondent No.1 in exercise of the powers under Section 7B(1) of the Citizenship 3 Act, 1955 (“Act 1955” for short), the petitioners were also assured of appearing for the NEET-UG exam so as to compete to secure a seat to pursue the medical course. 2. Such right was available to the petitioners from a point almost immediately after their birth, since the petitioners in these petitions were born in the year 2003 onwards. Except for the fact that they were born in a foreign country, they had lived in this country for periods ranging from 10 to 15/17 years. In that view, the entire educational career was

qualify for the NEET-UG examinations and MBBS Course. In fact, in most of the cases, both parents of the petitioners herein are Indian nationals and in any case, one of them is an Indian national. Even in cases where both the parents are OCI Cardholders, the children have lived most of their life in India since their roots remain to be in India where grandparents and family are here. 3. When this was the position the respondent No.1 issued the notification dated 04.03.2021 in exercise of the power under Section 7B(1) of Act, 1955 whereunder the existing right of appearing for the Entrance Exams to compete with Indian Citizens for the seat was taken away and restricted 4 the admission only as against the seats reserved for the Non-Resident Indians or for supernumerary seats. The proviso to clause 4(ii) of the impugned notification dated 04.03.2021 in fact clarifies that the OCI cardholders shall not be eligible for admission against any seat reserved exclusively for Indian Citizens. This is done so, by providing an explanation that the OCI Cardholder is a foreign national holding passport from a foreign country and is not a citizen of India. 4. The petitioners, therefore, contend that such notification falls foul of the Doctrine of Non -Retrogression since the right which was being bestowed from the year 2005, instead of progressing and maturing to be a better right was being curtailed and reversed. The petitioners also contend that the right guaranteed under Articles 14 and 21 of the Constitution of India is violated since such right is available to “any person”, even if one is not a citizen of India. In the instant facts, the petitioners have no quarrel with the validity of Sections 7B(1), 7D, 8(1) and 9(1) of Act, 1955. The petitioners while accepting the sovereign power of the respondents, are only aggrieved by the manner in which 5 the impugned notification dated 04.03.2021 is issued, by which an existing right has been taken away. The

Cardholders, but are resident OCI Cardholders and therefore they should be treated like any other Citizen of India. Since respondent No.1 through the impugned notification has disentitled the OCI Cardholders from the process of admission to the seats to which the Indian citizens are entitled to participate in the selection process, they have approached this court assailing the impugned notification dated 04.03.2021, in these petitions under Article 32 of the Constitution of India. 5. The petitioners have accordingly sought for issue of an appropriate writ to quash clause 4(ii), its proviso and Explanation (1) as contained in the impugned notification dated 04.03.2021 bearing F No.2611/CC/05/2018-OCI. 6. The respondent No.1 has filed its objection statement seeking to justify the notification. It is necessary to take note herein that though in the instant batch of the petitions, the validity of the provisions in the Citizenship Act has not been assailed, in an another petition bearing W.P.(C) No.1397 of 2020 since there is a challenge to the said 6 provisions and was earlier tagged with these petitions, the respondents in the common counter affidavit have also referred to the provisions of the Act and the Constitution of

not require consideration in this batch of cases, the objections by respondent No.1 insofar as seeking to justify the issue of the impugned notification dated 04.03.2021 alone is taken note. In that regard, it is contended that as per the notification dated 11.04.2005, the OCI Cardholders were given parity with NRIs in the educational field. Under the notification dated 05.01.2009, the OCI Cardholder students were entitled to appear for All India Pre Medical Test and such other tests to make them eligible for admission. It is averred that a harmonious reading of 2005 and 2009 notifications leads to the conclusion that the OCI Cardholder students have parity to the NRIs and therefore can lay claim only to NRI quota seats. The educational right of OCI Cardholder students were discussed in a meeting of the Committee of Secretaries held on 19.07.2018 wherein it was agreed that the OCI Cardholders may be treated at par with NRI, in the quota of NRI and they ought not to be 7 eligible against seats meant for Indian citizens. Hence, it was felt that relevant notifications be issued by the Ministry of Home Affairs. In that view, the consolidated notification dated 04.03.2021 was issued in exercise of the power under Section 7B(1) of Act, 1955 whereby the earlier notifications of 2005, 2007 and 2009 were incorporated so as to bring clarity with regard to the various provisions. It is contended that the rationale is to protect the rights of the Indian Citizens and in such matters, State may give preference to its citizens vis-à-vis foreigners holding OCI Cards. In that regard it is stated that the number of seats available for medical and engineering courses in India are very limited

citizens. Hence the right to admission to such seats should be primarily available to Indian citizens instead of foreigners including OCI Cardholders. It is contended that the right to claim the protection under Article 14, 19 and 21 of the Constitution are not available to a person who is not a citizen, more particularly in matters of education and is limited to the privilege bestowed through a notification issued under the Act. The respondent No.1 therefore seeks 8 to justify and sustain the notification dated 04.03.2021, a portion of which is under challenge. 7. In the light of the above we have heard Mr. P. Chidambaram and Mr. K.V. Viswanathan learned senior counsels for the respective petitioners as also Mr. Kunal Cheema and the other learned counsels appearing for the respective petitioners. We have also heard Ms. Aishwarya Bhati, learned Additional Solicitor General for the respondents. In that light, we have perused the petition papers and all the documents made available to us. 8. The summary of the arguments on behalf of the petitioners is as hereunder;

Many of the Petitioners in WP No.891 of 2021, who were all NEET-2021 aspirants, appeared for NEET 2021 and also qualified and have secured admissions and are pursuing their academic courses. They would nd be in their 2 year of studies. There would be other OCIs also who are not part of the writ petitions, but would have taken the benefit of the order dated 08.11.2021 passed by this Hon’ble Court, which was a general order applicable to all. The OCIs have been equated with NRIs all along since 2005 as regards various rights conferred under 9 Section 7B(1) of the Citizenship Act and more particularly rights regarding education. That vide notification dated 05.01.2009, OCIs were permitted to carry out various professions in India as enumerated therein. That in view of the various rights having been given and more particularly education rights and right to work in India and also because many OCIs have their grandparents/families/roots in India, they came back to India long back and have been residing and working here and contributing to the nation like any other citizen in the form of taxes etc. The span of living here ranges as long as about 16 to 17 years. That till up to 04.03.2021 ( impugned notification ), OCIs were entitled to seek admission to all seats like NRIs were (who are still entitled to) and not restricted to only NRI seats or supernumerary seats, but pursuant to the said portion of the impugned notification, OCIs are now entitled to only seats reserved for NRI i.e. NRI seats or supernumerary seats, which is discriminatory and violative of Article 14 and 21 of the Constitution of India.

10 entitled to various seats other than seats reserved for NRIs, which they have been enjoying for considerable amount of time at par with NRIs, who today (notification dated 12.10.2022) also are entitled to all seats including seats reserved for Non-Residents. It is further contended that the only object as can be culled out from the Counter Affidavit of the Respondent no.1 appears to be to protect rights of Indian citizens as seats are limited. However, if the statistics of past few years i.e 2018-2019 onwards are seen, even when the OCIs were entitled to all seats and they took admissions then, few hundred seats were remaining vacant at the end of final counselling. In fact the data also shows that seats have been significantly increased year on year, yet at the end of final counseling seats have remained vacant. Hence, it is clear that the said objective is a misnomer and the said portion of the impugned notification smacks of arbitrariness and non-application of mind. The said portion of the impugned notification falls foul of the doctrine of “non-retrogression” as discussed in the matter of Navtej Singh Johar [2018 (10) SCC 1], as it is resulting in withdrawal of the rights which the OCIs have enjoyed for the past several years. OCIs have taken up particular stream of education, passing 10th and 12th from schools in same state, meeting domicile/residence requirements, keeping in mind the rights which were available to them and hence their such acts would be saved as “things done” as per the words “except as respect things done or omitted to be done before such supersession” appearing in impugned notification dtd 04.03.2021. In support of this submission, reliance was placed on Universal Import Agency and Anr. v. The Chief Controller of Imports and Exports and Ors . [1961 (1) SCR 305] The OCIs were entitled to have “legitimate expectation” as enshrined in the case of Navjyoti [1992 (4) SCC 477] that the said rights will continue to be available to them and not retrograded. That only a limited number of OCIs take the exam and out of them only a minuscule number clear the same and become eligible for admission. Hence no grave prejudice was being 11 caused if the OCIs were allowed to seek admission to all seats based on merit and withdrawal of the same is therefore arbitrary and unreasonable. 9. The summary of the contention on behalf of the respondents as put forth by the learned Additional Solicitor

with regard to the classification made between Indian citizens and Overseas Citizens of India cardholders and the same being statutory, whether it is sustainable. It is contended that the classification made by the impugned notification is supported by statutory provisions which legitimizes the State’s interest and ensures that the limited number of seats in educational institutions are available to Indian citizens and not taken away by foreigners. It is contended that for any sovereign country, the rights and privileges that are extended to the non-citizens are in exercise of inviolable sovereign powers and are essentially unfettered and unqualified. The courts have consistently declined to interfere in visa, immigration or such issues relating to foreigners. The power of exclusion of foreigners being an incident of sovereignty is that of the Government to be exercised. The OCI regime is a privilege extended by the 12 Parliament and the Executive, falling squarely in the domain of the sovereign policy of the country. The Citizenship is regulated in Part II (Articles 5 to 11) of the Constitution of India pursuant to which the Citizenship Act is enacted to regulate the same. Section 2(ee) of the Citizenship Act defines OCI cardholders to mean a person registered as an Overseas Citizens of India cardholder by the Central Government under Section 7A of the Act. The learned Additional Solicitor General on referring to the said constitutional provisions and the Citizenship Act would point out that the privilege of securing education in India was pursuant to the conferment of the same in terms of Section 7(B) of the Act by the issue of notification.

in these petitions is issued by the Ministry in continuation of the policy of the Union of India in conformity with the constitutional principles. With reference to the Notification, it is contended that it is very evident and clear that the intention was not to give the OCI cardholders parity with Indian citizens at any stage with regard to admission but the parity was always with NRIs. The policy was consistent 13 from 2004 when the OCI cardholders’ mechanism was started, to treat them at par with the NRIs. However, there was some dichotomy in the interpretation of the earlier Notifications and the benefit which was available to the NRIs for the seats along with Indian citizen students was also being extended. Therefore, after comprehensive consultation on the educational rights of the OCI cardholders in the meeting held on 19.07.2018 it was decided that the OCI cardholders may be treated at par with NRIs in the quota for NRI seats and they would not be

04.03.2021 was in supersession of earlier Notifications of 2005, 2007, and 2009 to bring clarity with regard to various provisions which were under consideration of the Ministry of Home Affairs for quite some time. In this context, consultations were held with all stakeholders and the Notification was issued.

Additional Solicitor General to substantiate her contention that the consideration with regard to the validity of the 14 Notification cannot be of a similar purport when it is assailed by the citizens of India and other decisions referred to would be considered at the appropriate stage. The sum and substance of the contention is that the decision is with the object of legitimate public interest and in the interest of the Indian citizens. Hence, it is contended that the impugned Notification does not call for interference and the petitioners are not entitled to seek any relief from this Court. 13 . In the light of rival contentions, at the threshold it is necessary to take note that though the arguments were elaborately addressed and the learned Additional Solicitor General referred in detail to the provisions of the constitution relating to citizenship and also the sovereign power of the respondent No.1 under the Act, 1955, we do not find it necessary to dwell into much detail in this batch of petitions. This is for the reason that from the very case put forth by the petitioners they are not questioning the power of respondent No.1 to issue notifications prescribing the right in respect of OCI Cardholders. However, the grievance is only that a right which existed in their favour 15 has been altered to their detriment without application of mind to the fact that most of the petitioners have spent their entire lifetime in India and also pursued their educational careers in India including appearing for the qualifying exam. As such the only grievance of the petitioners herein is with regard to the proviso to clause 4(ii) and Explanation contained in the impugned notification dated 04.03.2021 whereunder a limitation has been prescribed wherein they have been made entitled only to the seats available to NRIs and they have been specifically excluded from seeking admission to the seats which are exclusively available to the Indian citizens.

be noted read as hereunder:- “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- (a) any person of full age and capacity,- (i) who is citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the Constitution; or (ii) who is citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the 16 Constitution; or (iii) who is citizen of another country, but belonged to a territory that became part of India after the 15th day of August, 1947; or (iv) who is a child or a grandchild or a great grandchild of such a citizen; or (b) a person, who is a minor child of a person mentioned in clause (a); or (c) a person, who is a minor child, and whose both parents are citizens of India or one of the parents is a citizen of India; or (d) spouse of foreign origin of citizen of India or spouse of foreign origin of an Overseas Citizen of India Cardholder registered under section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application under this section: Provided that for the eligibility for registration as an Overseas Citizen of India Cardholder, such spouse shall be subjected to prior security clearance by a competent authority in India: Provided further that no person, who or either of whose parents or grandparents or great grandparents is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, shall be eligible for registration as an Overseas Citizen of India Cardholder under this sub-section. 2. The Central Government may, by notification in the Official Gazette, specify the date from which the existing Persons of Indian Origin Cardholders shall be deemed to be Overseas Citizens of Indian Cardholders. Explanation.- For the purposes of this sub- section, “Persons of Indian Origin Cardholders” means the persons registered as such under notification th number 26011/4/98 F.I., dated the 19 August, 2002, issued by the Central Government in this regard. 3. Notwithstanding anything contained in sub- section (1), the Central Government may, if it is 17 satisfied that special circumstances exist, after recording the circumstances in writing, register a person 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. (2) An Overseas Citizen of India Cardholder shall not be entitled to the rights conferred on a citizen of India- (a) under article 16 of the Constitution with regard to equality of opportunity in matters of public employment; (b) under article 58 of the Constitution for election as President: (c) under article 66 of the Constitution for election of Vice-President; (d) under article 124 of the Constitution for appointment as a Judge of the Supreme Court; (e) under article 217 of the Constitution for appointment as a Judge of the High Court; (f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter; (g) under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the House of the People or of the Council of States, as the case may be; (h) under sections 5, 5A and 6 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or the Legislative Council, as the case may be, of a State; (i) for appointment to public services and posts in connection with the affairs of the Union or of any State except for appointment in such services and posts as the Central Government may, by special order in that behalf specify. (3) Every notification issued under sub-section (1) 18 shall be laid before each House of Parliament.” (emphasis supplied) 15. The above-noted provisions were inserted initially during the year 2004 and were thereafter substituted on the introduction of the provisions in the year 2005 and substituted time to time thereafter. On foreign citizens of such category being given the status of OCI Cardholders, it

as contemplated under Section 7B of Act, 1955 (supra). 16. In exercise of the said power under Section 7B(1) of Act, 1955 the notification dated 11.04.2005 was issued which provides as hereunder:- “ MINISTRY OF HOME AFFAIRS NOTIFICATION th New Delhi, the 11 April, 2005 S.O. 542(E)- In exercise of the powers conferred by Sub-section (1) of Section 7B of the Citizenship Act, 1955 (57 of 1955), the Central Government hereby specifies the following rights to which the persons registered as Overseas Citizens of India under Section 7A of the said Act shall be entitled, namely:- (a) grant of multiple entry lifelong visa for visiting India for any purpose; (b) exemption from registration with Foreign Regional Officer or Foreign Registration Officer for any length of stay in India; and (c) parity with Non-Resident Indians in respect of all facilities available to them in economic, 19 financial and educational fields except in matters relating to the acquisition of agricultural or plantation properties. [F.No. 26011/2/2005-IC] DURGA SHANKER MISHRA, Jt. Secy.” (emphasis supplied)

multiple entry life-long visa for visiting India for any purpose, insofar as economic, financial and educational fields, parity with Non-Resident Indians was provided, except for acquisition of agricultural or plantation properties. By a subsequent notification dated 05.01.2007 issued under Section 7B(1) of Act, 1955, though no right relating to the field of education was referred to, the OCI Cardholders were given similar treatment with Non-Resident Indians in the matter of inter-country adoption of Indian children and also to be treated at par with the Indian Nationals in the matter of tariffs in air fares and also for same entry fee being charged to domestic Indian

pursuing professions and admission to professional course was issued, which reads as hereunder: 20 “MINISTRY OF OVERSEAS INDIAN AFFAIRS NOTIFICATION th New Delhi, the 5 January 2009 S.O.36(E) - In exercise of the powers conferred by sub- section (1) of Section 7B of the Citizenship Act, 1955 (57 of 1955), and in continuation of the notifications of the Government of India in the Ministry of Home th Affairs number S.O.542(E), dated the 11 April, 2005 and in the Ministry of Overseas Affairs S.O.12(E), th dated the 6 January, 2007, the Central Government hereby specifies the following rights to which the persons registered as the overseas citizen of India under Section 7A of the said Act, shall be entitled, namely :- (a) Parity with non-resident Indian in respect of, - (i) Entry fees to be charged for visiting the national monuments, historical sites and museums in India; (ii) Pursuing the following professions in India, in pursuance of the provisions contained in the relevant act, namely:- (i) Doctors, dentists, nurses and pharmacists; (ii) Advocates; (iii) Architects; (iv) Chartered accountants; (b) 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. [F.No.OI-15013/13/2008-DS] D.N. SRIVASTAVA, Jt. Secy.” (emphasis supplied) 19. Through the said notification dated 05.01.2009 the

professions indicated therein, in India and also to appear for the All-Indian Pre-Medical Test or such other 21 tests to make them eligible for admission in pursuance of the provisions contained in the relevant Acts . Since NRIs had parity with the Indian Citizens in that regard, the same benefit became extended to the OCI Cardholders

2007 and 2009 heavily relied on by the learned senior counsel for the petitioners would certainly indicate that from the stage of amendment to Act, 1955 through Section 7A to 7D thereof and the notifications issued pursuant thereto, conferring rights under Section 7B(1) and such right being expanded from stage to stage, it would indicate that based on the need, progression was made in conferring better right to the Overseas Citizens of India who, except for the incident of their birth in a foreign country were in all other respects similarly placed as that of Indian citizens and the limited foreign affiliation of NRI and OCI Cardholders made them to be compared with each other for parity. In fact, for the purpose of air fares and entry fee to places of interest, they were given parity with Indian nationals . It is in that view contended that taking away such a right that was 22 available in the changing social scenario would amount to retrogression when in fact better right should have been conferred. 21. In that background, it would be necessary to refer to the impugned notification dated 04.03.2021 which reads as hereunder: “MINISTRY OF HOME AFFAIRS NOTIFICATION th New Delhi, the 4 March, 2021 S.O. 1050(E) – In exercise of the powers conferred by sub-section (1) of section 7B of the Citizenship Act, 1955 (57 of 1955) and in supersession of the notification of the Government of India in the Ministry of Home Affairs published in the Official Gazette vide th number S.O. 542(E), dated the 11 April, 2005 and the notifications of the Government of India in the erstwhile Ministry of Overseas Indian Affairs published in the Official Gazette vide numbers S.O. 12(E), dated th th the 5 January, 2007 and S.O. 36(E), dated the 5 January, 2009, except as respect things done or omitted to be done before such supersession, the Central Government hereby specifies the following rights to which an Overseas Citizen of India Cardholder (hereinafter referred to as the OCI cardholder) shall be entitled, with effect from the date of publication of this notification in the Official Gazette, namely:- (1) grant of multiple entry lifelong visa for visiting India for any purpose Provided that for undertaking the following activities, the OCI cardholder shall be required to obtain a special permission or a Special Permit, as the case may be, from the competent authority or the Foreigners Regional Registration Officer or the Indian Mission concerned, namely:- (i) to undertake research; 23 (ii) to undertake any Missionary or Tabligh or Mountaineering or Journalistic activities; (iii) to undertake internship in any foreign Diplomatic Missions or foreign Government organisations in India or to take up employment in any foreign Diplomatic Missions in India; (iv) to visit any place which falls within the Protected or Restricted or prohibited areas as notified by the Central Government or competent authority; (2) exemption from registration with the Foreigners Regional Registration Officer or Foreigners Registration Officer for any length of stay in India: Provided that the OCI cardholders who are normally resident in India shall intimate the jurisdictional Foreigners Regional Registration Officer or the Foreigners Registration Officer by email whenever there is a change in permanent residential address and in their occupation; (3) parity with Indian nationals in the matter of,- (i) tariffs in air fares in domestic sectors in India; and (ii) entry fees to be charged for visiting national parks, wildlife sanctuaries, the national monuments, historical sites and museums in India; (4) parity with Non-Resident Indians in the Matter of,- (i) inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption; (ii) appearing for the all India entrance tests such as National Eligibility cum Entrance Test, Joint Entrance Examination 24 (Mains), Joint Entrance Examination (Advanced) or such other tests to make them eligible for admission only against any Non-Resident Indian seat or any supernumerary seat; Provided that the OCI cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens. (iii) Purchase or sale of immovable properties other than agricultural land or farm house or plantation property; and (iv) Pursuing the following professions in India as per the provisions contained in the applicable relevant statutes or Acts as the case may be, namely:- (a) doctors, dentists, nurses and pharmacists; (b) advocates; (c) architects; (d) chartered accountants; (5) in respect of all other economic, financial and educational fields not specified in this notification or the rights and privileges not covered by the notifications made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999), the OCI cardholder shall have the same rights and privileges as a foreigner. Explanation – For the purposes of this notification,- (1) The OCI Cardholder (including a PIO cardholder) is a foreign national holding passport of a foreign country and is not a citizen of India. (2) “Non-resident Indian” shall have the same meaning as assigned to it in the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018 made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 25 1999) and who fulfills the “Non-Resident Indian” status as per the Income Tax Act, 1961 (43 of 1961). [F.No.26011/CC/05/2018-OCI] PRAMOD KUMAR, Director” (emphasis supplied) 22. A perusal of the notification dated 04.03.2021 would

OCI Cardholders are in fact a consolidation of the rights which had been bestowed through the notification dated 11.04.2005, 05.01.2007 and 05.01.2009. However, the impugned portion of the notification is the portion which has been emphasised i.e. the proviso to clause 4(ii) and Explanation (1) thereto and limiting the parity only to NRI seats and supernumerary seats. Through the impugned portion of the notification, the parity which existed with Non-Resident Indians including in the field of education has been modified to indicate their eligibility for admission only against any “Non-Resident Indian seat” or any supernumerary seat. It is relevant to take note herein that the Non-Resident Indians apart from the seats reserved only for Non-Resident Indians, are also entitled to participate in 26 the selection process for allotment of seats along with the Indian citizens for the remaining seats as well, which benefit was hitherto available to OCI Cardholders by virtue of their parity with NRIs. However, by presently specifying that the OCI Cardholders would be eligible for only the Non-Resident Indian seat or any supernumerary seat, the right available to the OCI Cardholders is only for the seats which are reserved as NRI quota seats, for which they would have to compete with the NRI candidates for the limited number of seats, for which higher fee structure is also fixed. The proviso thereto makes it clear that the OCI Cardholders shall not be eligible for admission against any seat reserved exclusively for Indian citizens. The provision contained in the impugned portion of the notification dated 04.03.2021 would indicate that the OCI Cardholders even if they have settled down in India and have undergone their entire educational course in India but not having renounced the citizenship of a foreign country and not having acquired the citizenship of India will now be denied the opportunity of securing a medical seat in the general pool of Indian citizens including NRIs and will have to compete only for the limited 27 seats available under the NRI quota, which would be a denial of an opportunity of education to such OCI Cardholders which was hitherto available. It is in that view contended that a legitimate expectation of the petitioners herein is being defeated and they are also being discriminated upon due to which there is a violation of

to the precedents cited and relied upon by the learned counsel for all the parties including the respondents. 24. In support of the case of the petitioners, Shri P. Chidambaram, learned Senior Counsel placed reliance on the decision in (1978) 1 SCC 248 Maneka Gandhi vs. Union of India, to contend that unreasonable classification is not permissible, wherein, inter alia , it is held as hereunder; “7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. We must reiterate here what was 28

Union of India Thr. Secretary Ministry of Law and

observed as hereunder:

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26. The decision in (1995) 5 SCC 482 LIC Vs. Consumer Education and Research Centre was relied on to contend that every activity of public authority must be informed by reasons and guided by public interest and the exercise of discretion or power by public authority must be judged by that standard. Para 24 and 30 of the decision relied upon is as hereunder:

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27. Shri K.V. Viswanathan, learned senior counsel while contending that the right which had accrued cannot be taken away and the ‘things done’ or ‘omitted to be done’ before such supersession is to be kept in view, has relied on

Agency & Ans. Vs. Chief Controller of Imports and

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28. The learned senior counsel, further on the principle of legitimate expectation, relied on the decision in (1992) 4 SCC 477 Navjyoti Coop.Group Housing Society and Ors. Vs. Union of India & Ors . wherein it is observed as

34

35

Doctrine of Ultra Vires was also relied in (2007) 13 SCC 673 J.K. Industry Ltd. vs. Union of India wherein it is held as hereunder:

36

30. Ms. Aishwarya Bhati, learned Additional Solicitor General, in seeking to distinguish the above-referred decisions contended that the cases referred to by the learned senior counsel for the petitioner are all in the

Citizens of India against the State/Authorities or when the

of India. In that view, it is contended that the petitioner cannot claim protection under Article 14, 19 or 21 of the Constitution of India. Even for claiming any right under 37 Article 14, the same will emerge from Article 19 of the Constitution and as such protection cannot be accorded to foreigners. 31. In addition, the learned Additional Solicitor General, to emphasize that a policy decision in public interest cannot be interfered, referred to the decision in (1998) 4 SCC 117 State of Punjab and Ors. Vs. Ram Lubhaya Bagga & Ors.:

38

32. On the contention relating to the reasonable classification test and a foreigner not having right, the following decisions are relied upon by the learned Additional Solicitor General. They are; (i) AIR 1962 SC 1052 Izhar Ahmed Khan & Ors. vs. Union of India.

39

(ii) AIR 1964 SC 1140 Indo-China Steam Navigation Co.Ltd. vs. Jasjit Singh & Ors.

40

(iii) (1994) Supple 1 SCC 615 State of A.P. vs. Khudiram Chakma “75. It is true that fundamental right is available to a foreigner as held in Louis De Raedt v. Union of India [(1991) 3 SCC 554: 1991 SCC (Cri) 886] : (SCC p. 562, para 13) “The next point taken on behalf of the petitioners, that the foreigners also enjoy some fundamental rights under the Constitution of this country, is also of not much help to them. The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)( e ), which is applicable only to the citizens of this country.” 41 As such Articles 19(1)( d ) and ( e ) are unavailable to foreigners because those rights are conferred only on the citizens. Certainly, the machinery of Article 14 cannot be invoked to obtain that fundamental right. Rights under Articles 19(1)( d ) and ( e ) are expressly withheld to foreigners.” (iv) AIR 1955 SC 367 Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta & Ors .

42

42. Our conclusion is that the Foreigners Act is not governed by the provisions of the Extradition Act. The two are distinct and neither impinges on the other. Even if there is a requisition and a good case for extradition, Government is not bound to accede to the request. It is given an unfettered right to refuse. Section 3(1) of the Extradition Act says—“the Central Government may, if it thinks fit”. Therefore, if it chooses not to comply with the request, the person against whom the request is made cannot insist that it should. The right is not his; and the fact that a request has been made does not fetter the discretion of Government to choose the less cumbrous procedure of the Foreigners Act when a foreigner is concerned, provided always, that in that event the person concerned leaves India a free man. If no choice had been left to the Government, the position would have been different but as Government is given the right to choose, no question of want of good faith can arise merely because it exercises the right of choice which the law confers. This line of attack on the good faith of Government falls to the ground.” 33. In order to contend that the classification made is valid, the learned Additional Solicitor General has referred to the decision in; (i) AIR 1952 SC 75 State of W.B. Vs. Anwar Ali

43

(ii) (1955) 1 SCR 1045 Budhan Choudhary Vs. State of Bihar 44

45 (iii) (1976) 2 SCC 310 State of Kerala Vs. N.M. Thomas

34. The learned Additional Solicitor General has also referred to the decision in (2001) 2 SCC 259 K. Thimmappa Vs. Chairman, Central Board of Directors 46 to contend that when a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by the Court is not whether it has resulted in inequality but whether there is some differentia which bears a just and reasonable relation to the object of Legislation. Mere differentiation does not per se amount to discrimination within the inhibition of the equal protection clause. 35. Having noted the above, at the outset, insofar as the decision relied on by the learned senior counsel for the petitioner in the case of 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 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 47 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 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. 36. 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 48 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 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 49 be tested which certainly can be raised by the petitioner and be addressed by this Court. 37. 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 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. 38. 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 50 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 under Act, 1955 which had come into force based on the provision in Article 11 of the Constitution of India. 51 39. 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 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 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 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 52 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. 40. 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 hereunder: -

53

54

55 41. 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 56 and undertaking the preparation for the same. 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. 42. 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 57 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. 43. 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- 58 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. 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. 44. 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 59 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. 45. The learned senior counsel for the petitioners would in that context contend that since sub-section (2) to Section 7B of Act, 1955 does not exclude the right under Article 14 of the Constitution, it is 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 60 change is made and the application of mind by the Respondent No.1, before issuing the impugned notification requires examination. 46. 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 61 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 seats should primarily be available to the Indian citizens instead of foreigners, including OCI Cardholders. 62 47 . 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:- “STATEMENT REFERRED TO IN REPLY TO RAJYA SABHA * TH STARRED QUESTION NO.64 FOR 13 DECEMBER, 2022 (a) to (c) As per information received from National Testing Agency (NTA), the details of number of students who appeared 63 for the NEET-UG examination in the last three years are as under:-

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

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

64

(Emphasis Supplied) 48. 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 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 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 65 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. 49. To put the matter in its context for better appreciation of the mischief caused by the impugned notification and the manner in which it 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 66 2021 as an instance to demonstrate the case in point. From the tabular statement supra, it is noted, (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) Has lived thereafter in India for 15 years.” (e) Presently she is at Pune, Maharashtra, (f) pursued her entire educational career in India th (g) Passed the 12 standard which is the qualifying examination to appear for the Medical Entrance also in India. 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. 50. 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 67 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 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. 51. 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 68 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. 52. 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 69 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 Pre-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, 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 70 so as to abruptly deny 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. 53. 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 71 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. 54. 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 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. 55. 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 72 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. 56. 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. 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 non-application of mind and despite being prospective, is in fact ‘retroactive’ taking 73 away the rights which were conferred also as a matter of policy of the Sovereign State. 57. 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. 58. 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 process and the subsequent action based on 74 the interim orders passed herein or elsewhere shall stand regularised. 59. 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) 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. 60. In terms of the above, all these petitions/ appeals are allowed in part to the above extent with no order as to costs. 61. Pending application, if any, stands disposed of. .…………....................J. (A.S. BOPANNA) ..…..……….................J (C.T. RAVIKUMAR) NEW DELHI; FEBRUARY 03, 2023 75