NEET: Supreme Court declares Centre's order of barring OCI candidates from General seats to be applied prospectively

New Delhi: The Supreme Court has recently ruled that the Central Government rule of barring the Overseas Citizens of India (OCI) cardholders to apply for general category medical seats will be applied prospectively from the date on which the rule was implemented.

Back on March 4, 2021, the Ministry of Home Affairs issued the concerned notification and states that OCI candidates could only apply for NRI quota seats or supernumerary seats for the National Eligibility-cum-Entrance Test.

However, now the top court bench of Justices A.S Bopanna and C.T Ravikumar has held that "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."

"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," further read the order.

Therefore, the Apex Court bench has clarified that the rights of those who were already OCI cardholders until March 4, 2021 i.e. the date of notification will remain unaffected and their pre-existing rights will also be saved.

These observations were made while the top court was considering a batch of petitions filed by OCI students who challenged the 2021 notification issued by the Government.

Medical Dialogues had reported back in 2021 that issuing a gazette notification, the Ministry of Home Affairs (MHA) had stated that the OCI Cardholders can secure admission to "only NRI (Non-Resident Indian) quota seats" in educational institutions based on all-India entrance tests such as National Eligibility cum Entrance Test.

As per the latest gazette notification, dated 04.03.2021, the OCI cardholders "appearing for the all India entrance tests such as National Eligibility cum Entrance Test, Joint Entrance Examination (Mains), Joint Entrance Examination (Advanced) or such other tests" would be "eligible for admission only against any Non-Resident Indian seat or any supernumerary seat". This way, the OCI cardholders won't be eligible for "admission against any seat reserved exclusively for Indian citizens."

Also Read: OCI candidates can get admission to only NRI quota seats after taking NEET: MHA

However, the matter came to be challenged before the Supreme Court and issuing an interim relief to the OCI Candidates, the top court bench had allowed them to participate in the general category of NEET Counselling for the academic year of 2021-2022.

"The participation of the petitioners and similarly placed OCI cardholders in the selection process and the subsequent action based on the interim orders passed herein or elsewhere shall stand regularised," the Apex Court bench mentioned while referring to its previous interim order.

It was argued by the petitioners that the students born to OCI parents, who have been staying in India, can not be compared with the Non-Resident Indians (NRIs), as the NRIs live abroad and they earn foreign currency. However, several OCI families stay in India, pointed out the counsel for the petitioners.

Further the counsel for the petitioners emphasized on the fact that the NRI quota medical seats are very limited in number and the fees for such seats is exorbitant. Therefore, OCI students who live in India cannot afford such fees.

On the other hand, the counsel for the Union Government, ASG Aishwarya Bhati submitted that the petitioners were trying to compete for the seats which are meant for the Indian students, who do not have any avenues open for them outside. On the other hand, the OCI students can get citizenship rights abroad.

"...though the impugned notification dated 04.03.2021 is based on a policy and in the exercise of the statutory power of a Sovereign State, the provisions as contained therein shall apply prospectively only to persons who are born in a foreign country subsequent to 04.03.2021 i.e. the date of the notification and who seek for a registration as OCI cardholder from that date since at that juncture the parents would have a choice to either seek for citizenship by descent or to continue as a foreigner in the background of the subsisting policy of the Sovereign State," the bench noted.

Further the bench noted that most of the petitioners had completed their school education in India, even though they were born in a foreign country. The bench also observed that the Central Government had been expanding the rights of OCI cardholders via its previous notifications issued back in 2005. OCI cardholders had been given these rights in exercise of powers under Section 7B of the Citizenship Act, 1955.

Noting that in this background, even though the doctrine of legitimate expectation may not apply strictly, "statutory right conferred had sown the seed of hope recognising the affiliation to this country".

"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," the bench observed.

"...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," it added.

While the Central Government tried to justify its action saying that the decision had been taken to protect the interest of Indian students, the bench noted,

"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," it added.

The bench opined that OCI students who have been living in India for past several years have rights accrued to them and it cannot be retroactively taken away.

"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," it noted.

Further the bench observed that the future application of the notification should be re-looked and noted,

"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."

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/supreme-court-oci-candidates-200740.pdf

Also Read: NEET 2022: Supreme Court denies relief to OCI candidates seeking Admissions under general category