- Apprentice Lawyer
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 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.
The Government of India through the Ministry of Home Affairs, had issued a gazette notification on April 11, 2005, conferring certain rights on OCI cardholders as per Section 7A of the Citizenship Act.
Subsequently, another notification was issued on January 5, 2009 entitling OCI cardholders 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 but this Act did not include OCI cardholders for the process of admissions.
The OCI cardholders approached the Karnataka High Court against the State government's refusal to let them 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 at 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 got secured admission in government seats in private/ government medical colleges
The State then filed an appeal before the Supreme Court against the High Court verdict but, subsequently, withdrew the same.
For the Academic Year 2018-2019, the High Court, by way of an interim order of 2018, permitted OCI cardholders to participate in the counseling for selection of seats with respect to Engineering and other similar courses.
Against the interim order, the State filed a 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 OCI cardholders 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 that the State preferred the present appeal. In a connected writ petition, the petitioners sought similar reliefs as was granted in the earlier years.
Arguments of Parties
The State government contended that the notification of January 2009 issued by the Ministry of Overseas Indian Affairs, was incorrectly interpreted by the single-judge contrary to the provisions of the 2006 Act as well as 2006 Rules of the State government.
Assistant Solicitor General, appearing for the Central government, 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, that is, OCI cardholders/students, in the writ appeal submitted that OCI Cardholders cannot be included in the category of Non- Resident Indians 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:
"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 made it clear that an OCI Cardholder cannot be treated on par with the Non-Resident Indian under Section 2(1)(n) of 2006 Act in view of the notification of January 2009.
"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," the judgment said.
The Court, therefore, held that Rule 5 of 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 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 courses wherein the NEET scheme will apply.