Day 1 Oral Hearing – AdmissionsConstitutional Rights of Overseas Citizens of India
September 29th, 2021
The challenges have been filed by Overseas Citizens of India (OCIs). They claim that the provisions give the executive unchecked discretion to revoke their citizenship. They also argue that the government is taking away previously granted rights from them.
On September 29th, the Bench heard connected petitions filed by OCIs who had appeared for the NEET examination for entry into medical programmes in public colleges in India. They challenge a notification (the impugned notification)from the Ministry of Home Affairs (MHA) which requires OCIs to take admission in medical colleges only through NRI quota seats. This notification, released in March 2021, was issued under Section 7 of the Act.
MHA Notification Pursuant To Section 7
Senior Advocate Vikas Singh, appearing for the OCI NEET candidates, took the Court through the relevant provisions of the Act. He stated that Section 7(A) defined OCIs as those who are citizens of another country, but are connected to India either by virtue of having been citizens at the time of independence themselves, or being children/grandchildren/great grandchildren of such citizens.
He then referred to Section 7(B) (2) of the Act which contains a list of positions that OCIs cannot take up. This ‘negative list’, as Mr. Singh called it, includes public employment, judges of High Courts and the Supreme Court, and members of legislative assemblies.
The impugned MHA notification takes from Section 7(B). It states that OCIs will have parity with Non-Residential Indians while appearing for all Indian entrance examinations, including NEET. It also states that OCIs will not be eligible for seats reserved ‘exclusively for Indian citizens’.
This effectively means that OCIs can only claim NRI seats, even if they score well enough for general category admission.
Nazeer J asked Mr. Singh if the Constitutional Amendment Act, 2019 has anything to do with these challenges. Mr. Singh clarified that the two are not related.
Parity With NRIs is Illusive
Mr. Singh argued that NRIs are entitled to double benefit. The ‘hardworking’ and ‘intelligent’ NRI candidate may claim admission under the general category and ‘moneybags’ NRIs may rely on NRI quota admission. However, after the MHA notification, OCIs would be eligible only for NRI quota seats.
Mr. Singh also pointed out that the fee for NRI seats was exponentially higher. Sr. Adv. Anita Shenoy, for the OCI NEET students, argued that while general category students must pay a few lakhs for their degree, NRI quota degrees cost three crores.
Mr. Singh argued that the OCIs were unlike NRIs. They had lived in India, and completed their school education here. Their parents worked and paid taxes in India. They earned in Indian rupees. They would not be able to afford the NRI quota fee, meant for NRI parents who earned in foreign currency.
Therefore, even though Section 7 of the Act provided for parity between OCIs and NRIs, the MHA notification makes them unequal.
Decision Abrupt and Arbitrary- Violates Article 14
Mr. Singh argued that OCIs had been granted the right to admission through the general category in Indian colleges in 2009. He stated that it would take any student two to three years to prepare for medical admissions in any country. The notification reversing this right arose in March 2021. The NEET examination process started a few months later.
Mr. Singh stated that Article 14 of the Constitution applies to citizens and non-citizens alike. The abrupt decision left OCIs with no time to consider alternatives to an Indian MBBS degree. Now, OCIs who cannot afford NRI seats will be unable to study medicine. Hence, Mr. Singh argued that it was arbitrary, and must be quashed for violating Article 14. He stated that the government has the authority to deny OCIs these rights, but it must do so in a timely manner. OCI parents must be given at least three years to plan for their children’s education.
Senior Advocate Devadatt Kamat, appearing for the OCI candidates, argued that the MHA notification also demonstrated a non-application of mind by the Ministry. The Notification states that it was framed in accordance with Section 7 of the Act. However, the Act requires parity between OCIs and NRIs, which the notification fails to achieve.
Nazeer J noted that Section 7(B) of the Act denied OCIs’s the right to reservation in public employment (Article 16). He asked Mr. Singh whether they could still claim a right against discrimination in public education under Article 15. Mr. Singh stated that they continued to hold Article 15 rights.
Mr. Kamat, appearing for the OCI candidates, stated that OCIs had returned to India for the love of their country, based on assurances of opportunities from the Government. This notification was an unreasonable denial of opportunities.
Interim Relief to Let OCIs Take Part in Admissions Process Sought
Nazeer J enquired about the status of the examination process. Mr. Singh informed him that the OCI candidates had written the examination. They were now awaiting results. The dates for the counselling stage, through which candidates are granted seats in specific colleges, would be announced soon after the results.
Mr. Singh, Mr. Kamat and Ms. Shenoy all argued that the number of OCI candidates in the pool of MBBS aspirants was miniscule. Mr. Singh stated that out of 11 lakh candidates, only 480 were OCI. Mr. Kamat stated that of these 480, only 33 were before the Court. The petitioners sought interim orders allowing them to take part in the counselling stages while the Court decided whether to quash the MHA notification entirely.
As ASG Aishwarya Bhati was occupied in another courtroom, the matter was adjourned for the day. It will now be heard tomorrow (Sept. 30th).