Citizenship Act Indian diaspora's umblical cord; OCI Cardholders to be treated as Indian Citizens for professional course admission: Karnataka HC
Such a stance, the Court said, would be in tune with the ancient India thought of 'Vasudhaiva Kutumbakam,' that is, world is a family.
Minor children of Indian citizens born overseas must have the same status, rights and duties as Indian citizens, the Karnataka High Court recently said ruling that Overseas Citizens of India (OCI) cardholders should be treated as Indian citizens for the purpose of admission to professional educational institutions.
Such a stance, the Court said, would be in tune with the ancient Indian thought of 'Vasudhaiva Kutumbakam,' that is, world is a family.
A Division Bench of Justices BV Nagarathna and NS Sanjay Gowda, in effect, quashed section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006 to the extent it includes the 'Overseas Citizens of India' or 'Overseas Citizens of India Cardholders' within the definition of "Non-resident Indian" (NRI).
"The impugned Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006, as amended by Karnataka Act No.22 of 2017, to the extent it includes the ‘Overseas Citizens of India’ or ‘Overseas Citizens of India Cardholders’ within the definition of “Non-resident Indian” is quashed," the High Court said.
The Court also said that the Citizenship Act is the umbilical cord through which the Indian Diaspora the world over have a connection with India—their country of origin.
Factual matrix
The Government of India through the Ministry of Home Affairs, had issued a gazette notification on April 11,2005, conferring further rights on OCI cardholders as per Section 7A of the Citizenship Act.
Subsequently, another notification dated January 5, 2009 was issued conferring certain rights on OCI cardholders entitling them to appear in All India Pre-Medical Test or any other test so as to make them eligible for admission in pursuance of provisions contained in the relevant statutes.
The Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, was enacted in 2006 and this act did not include OCI cardholders for the process of admissions.
The OCI cardholders approached the Karnataka High Court against the State government for not permitting them to participate in online counseling for government/private quota seats for MBBS/BDS/Engineering courses.
The Karnataka High Court disposed of the same by an order in 2017, stating that OCI cardholders shall be entitled to be treated on par with NRIs in the matter of admission to MBBS/BDS course for the academic year 2017-2018.
Pursuant to that, the said petitioners participated in the counseling and selected government seats in Private/ Government Medical Colleges and are pursuing their studies in MBBS/BDS courses.
The State then filed an SLP before the Supreme Court against the High Court verdict but, subsequently, withdrew the same.
For the Academic Year 2018-2019, the Court had, by way of an interim order of 2018, permitted OCI cardholders to participate in the counseling for selection of seats insofar as Engineering and such other courses.
Against the interim order, the State filed writ appeal but no stay was granted in the appeal.
For the Academic Year 2019-2020, the grievance of the OCI Cardholders being the same, writ petitions were filed seeking similar reliefs which were allowed by a single -judge by way of the impugned order dated April 10, 2019.
The single judge considered the definition of NRI under Section 2(1)(n) of 2006 Act in light of both the Central Government Notifications and held that a OCI Cardholder cannot be equated to an NRI in the matter of admission to professional colleges by an interpretation of the aforesaid two Notifications.
It is in respect of this Writ Petition, the State has preferred this appeal while in the connected matter, writ petitioners have sought for prayers similar to the earlier years, for the Academic Year 2019-2020.
Arguments of Parties
The State Government contended the single-judge was not right in interpreting the notification issued by the Ministry of Overseas Indian Affairs, dated 05/01/2009 contrary to the provisions of the 2006 Act as well as 2006 Rules of the State Government.
Assistant Solicitor General, appearing for the Centre and Senior Counsel NK Ramesh appearing for the Karnataka Examinations Authority also concurred with the submissions of the State.
The counsel appearing for the respondent – OCI cardholders/students in the writ appeal submitted that said that OCI Cardholders cannot be included in the category of Non- Resident Indian under Section 2(1)(n) of the 2006 Act.
It was further brought to the attention of the Court that even in States of Maharashtra, Kerala and Tamil Nadu, the expressions “Non-Resident Indian” and “Overseas Citizen of India Cardholder” have been distinguished, but they may not be entitled to any kind of reservation which is permissible only for Indian nationals.
What the Court held
Referring to statutory provisions under the Citizenship Act and notifications issued thereunder, the court observed that the amendment made to Section 2(1)(n) of 2006 Act is contrary to the central law and therefore, has to be struck down on the ground of repugnancy as per Article 254 of the Constitution.
In this regard, the Court held that,
Therefore, if, on an interpretation of the Notification dated 05/01/2009 it is held that the parity of OCI Cardholders with Non-Resident Indians in the matter of appearance and eligibility for admissions in the Medical/Dental and Engineering Entrance Test is removed, the OCI Cardholders cannot be treated as a Non-Resident Indian. The said Notification having been issued on 05/01/2009, would prevail as it is a Notification issued under the Citizenship Act, which is a Parliamentary legislation and not State law.
The Court added that,
"Thus, an OCI Cardholder cannot be treated on par with the Non-Resident Indian under Section 2(1)(n) of 2006 Act (State law), on account of the interpretation given to Notification dated 05/01/2009 and the State law will have to yield to the Central law, due to applicability of doctrine of occupied field and having regard to the repugnancy under Article 254 of the Constitution."
In its 123 page long judgment, the Bench remarked that, "The Citizenship Act is the umbilical cord through which the Indian Diaspora the world over have a connection with India—their country of origin."
The Court, therefore, held that Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006, to the extent it prescribes Indian Citizenship, should be interpreted so as to include within the scope of the expression ‘Citizen’, OCI C\cardholders as per Section 4 of the Citizenship Act and as per Notification dated January 5, 2009.
Thus, the court upheld the direction of the single judge to permit petitioners to register for CET-2019 and participate in the ensuing counselling of CET-2020 or subsequent years, for selection and allotment of seats in BE/B.Tech/B.Arch.
Similar direction was also issued for MBBS/BDS course wherein NEET scheme will apply.
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