'Will apply only prospectively': SC on order to treat OCIs as NRIs in tests for medical courses

New Delhi, Feb 3 (IANS) The Supreme Court on Friday declared that Centre's March 2021 decision, stating Overseas Citizens of India (OCI) appearing for entrance tests to medical courses could not compete for seats reserved for Indian citizens would be applied with prospective effect only.

A bench of Justices A.S. Bopanna and C.T. Ravikumar said: "The notification suffers from the vice of non-application of mind and despite being prospective, is in fact 'retroactive' taking away the rights which were conferred also as a matter of policy of the sovereign state."

It further added, "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".

The Central government had argued that OCI cardholders were not eligible for admission against any seat reserved exclusively for Indian citizens.

Citing that notification is based on a policy, the bench said in the exercise of the statutory power of a sovereign state, it would apply prospectively only to persons who are born in a foreign country subsequent to March 4, 2021. "... 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," it added, in a 75-page judgment.

The government had stressed that the OCI cardholder is a foreign national holding a passport from a foreign country and is not a citizen of India.

The top court said: "It is held that the respondent No.1 (Centre) 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 However, when a conferred right is withdrawn, modified or altered, the process leading thereto should demonstrate application of mind, nexus to the object of such withdrawal or modification and any such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."

It added that petitioners in all cases before it and all other similarly placed OCI cardholders will be entitled to the rights and privileges which had been conferred on them prior to the notification and could be availed by them. The top court's judgment came on a batch of petitions by OCI candidates.

A group of candidates led by Anushka Rengunthwar contended that the existing right of appearing for the entrance exams to compete with Indian citizens for the seat in NEET PG and Super Speciality courses was taken away.

The candidates had emphasized that they were restricted for the admission only against the seats reserved for the NRIs or for supernumerary seats.