Day 2 Oral Hearings – Admissions

Constitutional Rights of Overseas Citizens of India

A two-judge bench comprising Justices Abdul Nazeer and Krishna Murari will continue to hear challenges to Section 7D of the Citizenship Act, 1955 (‘the Act’) on September 30th, 2021.

The challenges have been filed by Overseas Citizens of India (OCIs). They claim that the Act’s provisions give the Union government unchecked discretion to revoke their citizenship. They also argue that the Union government is taking away rights that have already been granted to them.

Today, the Bench will continue to hear 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 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.

In the last hearing, the OCI candidates argued that they did not have financial parity with NRI candidates. The decision to limit them to NRI seats was arbitrary. It violated Article 14 of the Constitution. Today, the Court heard Additional Solicitor General (ASG) Aishwarya Bhati.

Bench Focuses on Interim Relief

Nazeer J began the hearing by asking ASG Bhati to address them on the question of interim relief. The question was not the notification’s validity, but whether it gave OCIs enough time to make arrangements. He pointed out that OCIs are not outsiders and have contributed to India’s economy. He suggested that the notification might be arbitrary and violates the ‘legitimate expectation’ that OCIs had.

ASG Bhati said she would restrict her arguments to the interim relief. She argued that OCIs are foreigners. They are not Indian citizens. OCIs were given privileges as a matter of foreign policy. In the NEET examination, there are 15 lakh aspirants competing for 80,000 seats. This includes around 400 OCIs, and lakhs of Indian citizens.

After providing this background, ASG Bhati argued that the petitioners did not have a prima facie case. This means that the petitioners must have an argument that has a chance of succeeding. A prima facie case is one of the conditions for any petitioner to get interim relief, such as allowing OCIs to take part in NEET under all categories. ASG Bhati argued that s 9 of the Citizenship Act, 1955 was held to be constitutional. She submitted that since the notification followed from this, there was no prima facie case against the notification. So, the petitioners cannot receive interim relief.

Nazeer J asked ASG Bhati to restrict her arguments to the notification. He pointed out that the challenge against notification was based on Articles 14 and 15. He also added that India is known for its inclusiveness, by making a reference to the CAA which allows some communities from neighbouring countries to get Indian citizenship.

Nazeer J added that all three conditions for interim relief appeared to exist. The three conditions are a prima facie case; the presence of irreparable harm to the petitioner if they do not get relief; and that the relief balances the convenience of all parties.

Murari J agreed with Nazeer J and said that a prima facie case existed. The notification had taken away a right to admission in medical colleges under the general category which OCIs had previously held. However, it did not give enough time to OCIs to make alternative arrangements, which would make it arbitrary under Article 14.


A Matter of Economics or Rights?

ASG Bhati argued that the right to admission in medical colleges had not been taken away. OCIs could still participate in NEET. The notification only said that OCIs had to participate under the NRI quota. Murari J asked ASG Bhati whether OCIs always had to participate under the NRI quota, even before the notification was issued. ASG Bhati responded that this was not the case in all States.

ASG Bhati added that rather than taking away the rights of OCIs, the controversy about the notification was simply a ‘matter of economics’. They just had to pay the higher fees under the NRI quota. Murari J pointed out that even if the right was not directly affected, it was indirectly taken away because OCIs did not have the time to arrange for funds to meet the higher fees.

ASG Bhati responded that the OCIs could access student loans, and a scheme to stagger payments could be worked out. She also added that the notification came out in March, and it was now September. She argued that 6 months was sufficient time to arrange for finances.

Murari J pointed out that taking loans has a lot of formalities, and some students may not be eligible for it. ASG Bhati suggested that if finances were the issue, then after the results are declared, OCIs can declare their financial assets and a solution can be found. Both Nazeer and Murari JJ said that doing so in this academic year would be impractical.

Bhati: OCIs Do Not Pledge Allegiance to the Indian Constitution

ASG Bhati made a distinction between three types of students who aspire to study medicine. The first is Indian citizens who live in India, which is the vast majority. The second is NRIs, who are Indian citizens but do not reside in India. The third category is OCIs, who are not Indian citizens. OCIs voluntarily chose to give up their citizenship, they were not ‘repelled’, ASG Bhati argues. She also pointed out that under Article 11 of the Constitution, the Union has the power to make laws on citizenship.

ASG Bhati stressed that OCIs voluntarily chose the citizenship of another country. She pointed out that under s 5 of the Citizenship Act, 1955, OCIs had a fast track route to citizenship. They only needed to stay in India for 12 months to be eligible. She pointed out that since the petitioners had stayed in India for years, as they claimed, then they could take Indian citizenship.

ASG Bhati also pointed out that OCI was a broad category, which included spouses and children of Indian citizens. Most of them were not residing in India, and none were citizens. These were people who had pledged their allegiance to another Constitution, not the Constitution of India. So, she argued that they should not be able to lay a claim to subsidised seats meant for citizens. ASG Bhati submitted that the notification had classified these three categories with a legitimate justification: to allocate limited resources in a fair manner.

Nazeer J asked Sr. Adv. Vikas Singh, who represents the OCI petitioners, to respond to this point. Singh said that the petitioners lived in India and wanted to work here. He said that the notification came so close to the NEET examination that even if OCIs wanted to apply for citizenship, they did not have the time to. So, he argued that the notification was still arbitrary.

Bench Orders OCIs to be Considered under All Categories

Nazeer J pronounced the order for the Bench. They directed that OCIs should be allowed to participate in the NEET examination under all categories, not just the NRI quota. On ASG Bhati’s insistence, they said this order would apply only to the 2021-22 academic year.