[CET 2021] OCI students cannot claim government, non-supernumerary seats: Karnataka High Court

The Karnataka High Court recently held that students who are Overseas Citizens of India (OCI) cardholders cannot claim government and non-supernumerary seats in the 2021 Common Entrance Test (CET) conducted by the Karnataka Examinations Authority (KEA) [Alekhya Ponnekanti v. Union of India & Ors]..Justice Krishna S Dixit upheld a notification issued by the Central government on March 4, 2021 as per which OCI cardholders are not permitted to stake their claim for admission to any seats other than those under the Non-Resident Indian (NRI) quota and supernumerary seats..The Court did, however, uphold the benefit accrued to the petitioners by way of its earlier interim order which had allowed them to appear for CET 2021, which was held in August. The same had been appealed before a division bench which declined to interfere and directed the expeditious disposal of the instant petitions. "All the petitioners are permitted to stake claim for admission consistent with the interim reliefs made in favour with many of them, subject to the eligibility & qualification; a period of ten days is granted to the petitioners to produce requisite documents before the Karnataka Examination Authority," the Court ordered.The Supreme Court had recently granted interim relief allowing OCI cardholders to take part in general counselling for the 2021 National Eligibility cum Entrance Test (NEET) for the academic year 2021-22. .The Court opined that the intention of the notification was to protect the interests of native residents of India who lack the exposure of OCI and NRI and cannot be made to compete merely by invoking the right to equality. The order stated,"The impugned part of the 2021 Notification is consciously incorporated with intent to protect the interest of the domiciling natives who lack the competitive edge qua the OCI Cardholders and the NRIs; both these classes i.e., OCI & NRI who are now equated to each other obviously have greater exposure to the outer world, by virtue of birth & brought up, in the case of former and by virtue of the residing in the case of latter; the classification between the natives on the one hand and the OCIs & the NRIs on the other cannot be faltered by invoking equality clause.".It went on to say that Article 14, which confers the right to equality under law, also sanctions "protective discrimination" as reiterated by the Supreme Court in EP Royappa v. State of Tamil Nadu. "Article 14 of our Constitution sanctions 'protective discrimination'; it hardly needs to be stated that the foreigners and the native citizens apparently belong to two different classes and therefore, treating them alike would fall foul of the principle of equality vide EP Royappa v State of Tamil Nadu," the Court held..The Court issued the order in a batch of petitions moved by several OCI cardholders who completed their 10th and 12th standard in the State of Karnataka.Upon completing their qualifying examinations, they attempted to register for the CET, but the KEA did not permit them to register for government seats and non-supernumerary seats on the ground that they are not the Indian citizens. The KEA did so on the basis of a Central government notification issued in 2021, a part of which takes away certain rights of professional education vested in the petitioners and those similarly placed, by virtue of earlier notifications issued in 2005 and 2009.This prompted the petitioners to approach the High Court challenging the part of the notification which did not permit OCI cardholders to stake their claim for admission to any seats other than those under the NRI quota and supernumerary seats..It was argued on behalf of the petitioners that under the 2005 and 2009 notifications, the OCI cardholders had the accrued right of admission to professional educational courses and these rights are saved even under the notification, but for the objectionable part. Further it was contended that the notification is liable to be held void as it was issued by the Central government even though Parliament is the only competent authority empowered to do so.The notification was also issued in violation of the principle of natural justice of audi alteram partem as it did not afford the affected parties an opportunity to be heard.Pertinently, it was pointed out OCI cardholders suffer a double disadvantage as though they are domiciled in Karnataka, they will not get admissions to the seats in question in India and will not be able to seek admission in their countries..However, these contentions were countered on the basis that the rights accrued to the petitioners are only those specifically conferred by the Central government. Regarding the argument on violation of principles of natural justice, it was argued that the same are not required to be followed in legislative and quasi-legislative processes.Moreover, what rights should be conferred on aliens is confined to the policy making realm which considers a host of factors and as such, are not susceptible to judicial review under Articles 226 and 227.The argument that the notification is discriminatory was opposed on the ground that Indian citizens constitute a class apart for receiving favourable treatment, especially in matters like this where native citizens are comparatively at a disadvantageous position. Therefore, they cannot be made to compete with OCI cardholders. .On the challenge to the Central government notification, the Court held,"...without the rights being granted by the Central Law, the aliens cannot gain entry to the portals of the seats in question; for staking claim of the kind, there has to be a singularity of State and Central Law; an argument to the contrary if accepted amounts to wrongly placing the Central Govt's power of dealing with aliens, at the hands of States, contrary to the policy enacted in Part XI, Chapter I r/w item 17 of Central List of the Constitution; it will be nothing short of shifting of the constitutional paradigm, which the Writ Court cannot undertake to venture.".The Court thus concurred with the respondents and dismissed the petitions without revoking the benefit granted to the petitioners by way of its earlier interim order in the matter..Advocates Ajoy Kumar Patil, Nitin R, D Vijayakumar, Samarth Prakash, Balakrishna V, Aditya Narayan, Abhishek Malipatil, Suresh K, Muni Singh, BR Srinivasa Gowda and Yatish S appeared for various petitioners.Additional Solicitor General MB Nargund and Advocate Shivakumar appeared for the Centre. Additional Advocate General Dhyan Chinnappa and Advocate Pramodini Kishan appeared for the State government, while Advocate NK Ramesh represented KEA..[Read Order]