ANUSHKA RENGUNTHWAR & ORS versus UNION OF INDIA & ORS.

ANUSHKA RENGUNTHWAR & ORS.

UNION OF INDIA & ORS.

(Writ Petition (C) No. 891 of 2021)

FEBRUARY 03, 2023

[A. S. BOPANNA AND C. T. RAVIKUMAR, JJ.]

Citizenship Act, 1955 – s.7B(1) – Through notificationsdtd.11.04.2005, 05.01.2009, the Overseas Citizens of India (OCI)Cardholders were given the right of parity with Non-ResidentIndians (NRIs) in respect of the facilities as notified, including inthe field of education, who in turn had the parity with Indian Citizens– Impugned notification dtd.04.03.21 issued by Respondent No.1,in exercise of powers u/s.7B(1), took away the existing right of OCICardholders of appearing for the Entrance Exams to compete withIndian Citizens for the seats and restricted the admission only asagainst the seats reserved for the NRIs or for supernumerary seats– Proviso to clause 4(ii) of the notification further clarified that theOCI Cardholders shall not be eligible for admission against anyseat reserved exclusively for Indian Citizens – Challenged bystudents-OCI Cardholders aspiring to become Doctors by pursuingthe MBBS course by securing admission through NEET andthereafter the post-graduation/super specialty – Held: Decision tosupersede the earlier notifications and take away the right of OCICardholders should not have been nullified without reference tothe consequences – Impugned notification not saving such accruedrights indicates non application of mind and arbitrariness – Thoughthe impugned notification is based on policy and is in the exerciseof the statutory power of Sovereign State, the provisions containedtherein shall apply prospectively only to persons born in foreigncountry subsequent to 04.03.2021 i.e. the date of the notificationand who seek for registration as OCI cardholder from that date –Impugned notification though competent u/s.7B(1) suffers from thevice of non-application of mind and despite being prospective, is infact retroactive taking away the rights which were conferred alsoas matter of policy of the Sovereign State – Impugned portion ofthe notification providing for supersession of the notificationsdtd.11.04.2005, 05.01.2007, 05.01.2009 and the clause 4(ii), its

CDEF

Aproviso and Explanation (1) thereto shall operate prospectively inrespect of OCI cardholders who have secured the same subsequentto 04.03.2021 – Citizenship Amendment Act, 2003 – Constitution ofIndia – Article 11, 14 – Foreigners Act, 1946 – s.2(a) – Doctrine ofLegitimate Expectation.BCitizenship Act, 1955 – ss.7A, 7B(1) – Right of the OverseasCitizens of India (OCI) Cardholders – Held: The right of the OCICardholders is midway right in the absence of dual citizenship –When statutory right was conferred and such right was beingwithdrawn through notification, the process for withdrawal isrequired to demonstrate that the action taken is reasonable and hasCnexus to the purpose – It should not be arbitrary, without basis andexercise of such power cannot be exercised unmindful ofconsequences merely because it is sovereign power – CitizenshipAmendment Act, 2003.

Citizenship Act, 1955 – s.7B(2) – Plea of the petitioners thatDsince s.7B(2) does not exclude the right u/Article 14, it is availableto be invoked and discrimination contemplated in the impugnednotification to exclude the OCI Cardholders should be struck down– Held: Article 14 can be invoked and contend discrimination onlywhen persons similarly placed are treated differently – The OCIECardholders being class by themselves cannot claim parity withthe Indian citizens, except for making an attempt to save the limitedstatutory right bestowed – Constitution of India – Article 14.

Partly allowing the petitions/appeals, the Court

HELD: 1.1 Most of the petitioners are all persons who areFeither of full age or are yet to reach the full age but are all children,whose both parents or one of them are Indian citizens. All thepetitioners are registered as Overseas Citizens of Indiacardholders is not in dispute. The right to which they are makinga claim is conferred under Section 7B(1) to Act, 1955. The rightto education which was conferred under the notification datedG11.04.2005, in parity with the Non-Resident Indians is due to thefact that the Non-Resident Indians which is separate class, hadsuch right similar to that of the Indian citizens in matters relatingto education. It is based on such right being conferred as farback as in the year 2005, the OCI Cardholders were taking partH

in the process of selections conducted for undertaking educationalcourses in India. Such benefit was extended to appear for the AllIndia Pre-Medical Test or such other tests to make them eligiblefor admission in pursuance of the provisions contained in therelevant acts, through the notification dated 05.01.2009. The saidbenefit is being enjoyed by all the OCI Cardholders in the samemanner as the Non-Resident Indians were enjoying along withthe Indian citizens. In that circumstance, most of such OCICardholders have been pursuing their entire educational careerin India. The extracted details would indicate that in all the casesthe petitioners have studied for more than six years in India andin most of the cases, almost the entire educational career up tothe stage of the qualifying examination for the Pre-Medical Testhas been undertaken in India. Apart from the specific cases notedherein, there are also petitioners/persons who had becomecitizens of foreign country for compelling reasons, but holdbenefit of OCI card. This would demonstrate that though in termsof law, the petitioners were ‘foreigners’ due to the incident ofbirth in foreign country or such other compelling circumstances,they continue to remain in India and to pursue their educationand had fully justified the mid-path benefit given to them basedon the OCI card. [Paras 38, 39, 41 and 42][287-E; 288-C-F; 291-A-C]

1.2 The right which was bestowed through the notificationdated 11.04.2005 and 05.01.2009 insofar as the educational parity,including in the matter of appearing for the All India Pre-MedicalTest or such other tests to make them eligible for admission hasbeen completely altered. Though the notification ex facie maynot specify retrospective application, the effect of supersedingthe earlier notifications and the proviso introduced to clause 4(ii)would make the impugned notification dated 04.03.2021‘retroactive’ insofar as taking away the assured right based onwhich the petitioners and similarly placed persons have alteredtheir position and have adjusted the life’s trajectory with the hopeof furthering their career in professional education. [Para 44][292-F-G]

1.3 Article 14 of the Constitution can be invoked andcontend discrimination only when persons similarly placed are

Atreated differently and in that view the OCI Cardholders being aclass by themselves cannot claim parity with the Indian citizens,except for making an attempt to save the limited statutory rightbestowed. To that extent certainly the fairness in the procedureadopted has nexus with the object for which change is madeand the application of mind by the Respondent No.1, beforeBissuing the impugned notification requires examination. [Para45][293-A-B]

1.4 The right of the OCI Cardholders is midway right inthe absence of dual citizenship. When statutory right wasconferred and such right is being withdrawn through notification,Cthe process for withdrawal is required to demonstrate that theaction taken is reasonable and has nexus to the purpose. It shouldnot be arbitrary, without basis and exercise of such power cannotbe exercised unmindful of consequences merely because it is asovereign power. Except for the bare statement in the objectionDstatement, there is no material with regard to the actual exerciseundertaken to arrive at conclusion that the participation of OCICardholders in the selection process has denied the opportunityof professional education to the Indian citizens. There are nodetails made available about the consideration made as to, overthe years how many OCI cardholders have succeeded in gettingEa seat after competing in the selection process by which therewas denial of seats to Indian Citizens though they were similarmerit-wise. [Paras 46, 47][293-C-D; 294-B-C]

1.5 It is sought to be pointed out on behalf of the petitionersthat the explanation put forth does not indicate the true State ofFAffairs in as much as, seats have still remained vacant in theprevious years. It is no doubt true that as contended by the learnedAdditional Solicitor General, the vacancies will remain due toseveral factors such as reservation of seats, other permutationsand combinations as also the preferred and non-preferredGcolleges. Be that as it may, the dire need to take away thebestowed right by applying the impugned notification even toyoung students who technically though are not citizens of thiscountry but were provided certain rights in such manner wouldnot be justified as it does not demonstrate nexus to the objectsought to be achieved. Policy decision for the future, certainly isH

within the domain of Respondent No.1 based on the sovereignpowers of the State. Even on that aspect all that has been statedis that the decision to issue the notification was taken in themeeting of Secretaries held on 19.07.2018 without indicating thenature of deliberations. Therefore, in that perspective, keepingin view the present position, the decision to supersede the earliernotifications and take away the right of OCI Cardholders in whosefavour such right had accrued and they have acted in manner totake benefit of such right should not have been nullified withoutreference to the consequences. Having undertaken the entireeducational career in India or at least the High School onwards,they cannot at this stage turn back to the country in which theywere born to secure the professional education as they wouldnot be in position to compete with the students there either,keeping in view the study pattern and the monetary implication.[Para 48][295-D-H; 296-A]1.6 It is evident that the object of providing the right in theyear 2005 for issue of OCI cards was in response to the demandfor dual citizenship and as such, as an alternative to dual citizenshipwhich was not recognised, the OCI card benefit was extended. Ifin that light, the details of the first petitioner taken note is analysedin that context, though the option of getting the petitioner No.1registered as citizen under Section 4 of Act, 1955 by seekingcitizenship by descent soon after her birth or even by registrationof the citizenship as provided under Section 5 of Act, 1955, wasavailable in the instant facts to her parents, when immediatelyafter the birth of petitioner No.1 the provision for issue of OCIcards was statutorily recognised and under the notification theright to education was also provided, the need for parents ofpetitioner No.1 to make choice to acquire the citizenship bydescent or to renounce the citizenship of the foreign country andseek registration of the Citizenship of India did not arise to bemade, since as an alternative to dual citizenship the benefit hadbeen granted and was available to petitioner No.1 and the entirefuture was planned on that basis and that situation continued tillthe year 2021. Further, as on the year 2021 when the impugnednotification was issued the petitioner No.1 was just about 18 yearsi.e., full age and even if at that stage, the petitioner was to renounceand seek for citizenship of India as provided under Section

A5(1)(f)(g), the duration for such process would disentitle her thebenefit of the entire education course from pre-school stagepursued by her in India and the benefit for appearing for the Pre-Medical Test which was available to her will be erased in onestroke. Neither would she get any special benefit in the countrywhere she was born. Therefore in that circumstance when thereBwas an assurance from sovereign State to persons like that ofthe petitioner No.1 in view of the right provided through thenotification issued under Section 7B(1) of Act, 1955 and all ‘thingswere done’ by such Overseas Citizens of India to take benefit ofit and when it was the stage of maturing into the benefit ofCcompeting for the seat, all ‘such things done’ should not havebeen undone and nullified with the issue of the impugnednotification by superseding the earlier notifications so as to takeaway even the benefit that was held out to them. [Paras 50,51][296-G-H; 297-A-F]

D1.7 On the face of it the impugned notification not savingsuch accrued rights would indicate non application of mind andarbitrariness in the action. Further in such circumstance whenthe stated object was to make available more seats for the IndianCitizens and it is demonstrated that seats have remained vacant,the object for which such notification was issued even withoutEsaving the rights and excluding the petitioners and similarlyplaced OCI Cardholders with the other students is to be classifiedas one without nexus to the object. As taken note earlier duringthe course this order, the right which was granted to the OCIcardholders in parity with the NRIs was to appear for the Pre-FMedical Entrance Test along with all other similar candidatesi.e. the Indian citizens. In situation where it has beendemonstrated that the petitioner No.1 being born in the year2003, has been residing in India since 2006 and has received hereducation in India, such student who has pursued her education

by having the same ‘advantages’ and ‘disadvantages’ like that ofGany other students who is citizen of India, the participation inthe Pre-Medical Entrance Test or such other EntranceExamination would be on an even keel and there is no greateradvantage to the petitioner No.1 merely because she was born inCalifornia, USA. Therefore, the right which had been conferredHand existed had not affected Indian citizens so as to abruptly deny

all such rights. The right was only to compete. It could have beenregulated for the future, if it is the policy of the Sovereign State.No thought having gone into all these aspects is crystal clearfrom the manner in which it has been done. [Para 52][297-F-H;298-A-C]

1.8 In the above circumstance, keeping in view, the objectwith which the Act, 1955 was amended so as to provide the benefitto Overseas Citizen of India and in that context when rights weregiven to the OCI cardholders through the notifications issuedfrom time to time, based on which the OCI cardholders hadadopted to the same and had done things so as to positionthemselves for the future, the right which had accrued in suchprocess could not have been taken away in the present manner,which would act as ‘retroactive’ notification. Therefore, thoughthe notification ex-facie does not specify retrospective operation,since it retroactively destroys the rights which were available, itis to be ensured that such of those beneficiaries of the right shouldnot be affected by such notification. Though the rule againstretrospective construction is not applicable to statutes merelybecause part of the requisite for its action is drawn from timeantecedent to its passing, in the instant case the rights wereconferred under the notification and such rights are being affectedby subsequent notification, which is detrimental and the sameshould be avoided to that extent and be allowed to operate withoutsuch retroactivity. It is not retrospective inasmuch as it does notaffect the OCI Cardholders who have participated in the selectionprocess, have secured seat and are either undergoing orcompleted the MBBS course or such other professional course.However, it will act as retroactive action to deny the right topersons who had such right which is not sustainable to that extent.The goal post is shifted when the game is about to be over. Theretroactive operation resulting in retrospective consequencesshould be set aside and such adverse consequences is to beavoided. [Paras 53, 54][298-D-H; 299-A]

1.10 Though the impugned notification dated 04.03.2021is based on policy and in the exercise of the statutory power ofa Sovereign State, the provisions as contained therein shall applyprospectively only to persons who are born in foreign country

Asubsequent to 04.03.2021 i.e. the date of the notification and whoseek for registration as OCI cardholder from that date since atthat juncture the parents would have choice to either seek forcitizenship by descent or to continue as foreigner in thebackground of the subsisting policy of the Sovereign State. Therespondent No.1 in furtherance of the policy of the SovereignBState has the power to pass appropriate notifications ascontemplated under Section 7B(1) of the Citizenship Act, 1955,to confer or alter the rights as provided for therein. However,when conferred right is withdrawn, modified or altered, theprocess leading thereto should demonstrate application of mind,Cnexus to the object of such withdrawal or modification and anysuch decision should be free of arbitrariness. In that background,the impugned notification dated 04.03.2021 though competentunder Section 7B(1) of Act, 1955 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 asDa matter of policy of the Sovereign State. Hence, the notificationbeing sustainable prospectively, it is hereby declared that theimpugned portion of the notification which provides forsupersession of the notifications dated 11.04.2005, 05.01.2007and 05.01.2009 and the clause 4(ii), its proviso and ExplanationE(1) thereto shall operate prospectively in respect of OCIcardholders who have secured the same subsequent to04.03.2021. [Paras 57-58][299-F-H; 300-A-B]

Maneka Gandhi v. Union of India (1978) 1 SCC 248 :[1978] 2 SCR 621; Navtej Singh Johar & Ors. v. UnionFof India Thr. Secretary Ministry of Law and Justice(2018) 10 SCC 1 : [2018] 7 SCR 379; LIC v. ConsumerEducation and Research Centre (1995) 5 SCC 482 :[1995] 1 Suppl. SCR 349; Universal Imports Agency& Ans. Vs. Chief Controller of Imports and Exports andOrs. [1961] 1 SCR 305; Navjyoti Coop.Group HousingGSociety and Ors. v. Union of India & Ors. (1992) 4SCC 477 : [1992] 1 Suppl. SCR 709; J. K. IndustryLtd. v. Union of India (2007) 13 SCC 673 : [2007] 12SCR 136; State of Punjab and Ors. v. Ram LubhayaBagga & Ors. (1998) 4 SCC 117 : [1998] 1 SCR 1120;

ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA &ORS.

Izhar Ahmed Khan & Ors. v. Union of India AIR 1962SC 1052 : [1962] Suppl. SCR 235; Indo-China SteamNavigation Co.Ltd. vs. Jasjit Singh & Ors. AIR 1964SC 1140 : [1964] SCR 594; State of A.P. v. KhudiramChakma (1994) Supple 1 SCC 615 : [1993] 3 SCR401; Hans Muller of Nurenburg v. Superintendent,Presidency Jail, Calcutta & Ors. AIR 1955 SC 367 :[1955] SCR 1284; State of W.B. v. Anwar Ali SarkarAIR 1952 SC 75 : [1952] SCR 284; Budhan Choudharyv. State of Bihar [1955] 1 SCR 1045;

State of Kerala v. N.M. Thomas (1976) 2 SCC 310 :[1976] 1 SCR 906; K. Thimmappa v. Chairman, CentralBoard of Directors (2001) 2 SCC 259 : [2000] 5 Suppl.SCR 368 – referred to.

ACIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition(Civil) No. 891 of 2021.

Under Article 32 of The Constitution of India

With

BWrit Petition (C) Nos. 503, 35, 246, 155, 347, 380, 322, 629, 740,706, 741 of 2022, Civil Appeal No. 812 of 2023, Writ Petition (C) No. 22,1070 of 2022, Writ Petition (C) No. 1230, 1186 of 2021, Writ Petition (C)No. 838 of 2022, Writ Petition (C) No. 1032 of 2021, Writ Petition (C)No. 961 of 2022, Writ Petition (C) Nos. 1123, 1128, 1125, 1150, 1129,1141, 1143, 1149 of 2021, Civil Appeal Nos. 811, 810 of 2023, Writ PetitionC(C) Nos. 1174 of 2021 and 34 of 2023.

P. Chidambaram, K. V. Viswanathan, Sr. Advs., Kunal Cheema,Mrs. Aditi Deshpande Parkhi, Shivam Dube, Romy Chacko, Ms. K. V.Bharathi Upadhyaya, Shivendra Singh, Dhananjaya Mishra, BikramDwivedi, Rohan Sharma, Dr. Mukut Nath Verma, B. K. Satija, HimanshuDSatija, Harshit Khanduja, Mrs. Neha Mehta, Abhay Pratap Singh, SriramP., M/s. K J John and Co, Pratap Venugopal, Ms. Surekha Raman, AkhilAbraham Roy, Vijay Valsan, Abhishek Anand, Ms. Unnimaya S., AbishekJebaraj, Ms. Srishti Agnihotri, Ms. Sanjana Grace Thomas, Ms. A. ReynaShruti, Ms. Mantika Vohra, Renjit V. Philip, Mukund P. Unny, Advs. forthe Petitioners.E

Ravindra Keshavrao Adsure, Lav Mishra, Rohan Darade, YashPrashant Sonawane, Ms. Sakshi Ajit Kale, Advs. for the Applicant.

Ms. Aishwarya Bhati, A.S.G., Ms. Chitrangada R., M. Singh, AmanSharma, Ms. Poornima Singh, Rustam Chauhan, Apoorva Kurup,FMrs. Aakanksha Kaul, Mrs. Ruchi Kohli, Kanu Agarwal, Udai Khanna,Mrs. Deepabali Dutta, Sanjay Kumar Tyagi, Rajan Kumar Chourasia,Nikhil Majithia, G. S. Makker, Arvind Kumar Sharma, Raj Bahadur Singh,V. N. Raghupathy, Varun Varma, Sonal Jain, Rupesh Kumar,Ms. Pankhuri Shrivastava, Ms. Neelam Sharma, Rajeev Sharma, SiboSankar Mishra, Nishe Rajen Shonker, Abraham C. Mathew, Mrs. AnuGK Joy, Alim Anvar, Rajat Joseph, Hrishikesh Chitaley, Vijay Kari Singh,Ranjeet Sangle, A. Karthik, Krishan Kumar, Ms. Rekha Dayal, HiteshKumar Sharma, S. K. Rajora, Akhileshwar Jha, Niharika Dwivedi,Ms. Shweta Sand, Ravish Kumar Goyal, Ms. Nitin Sharma, Amit KumarChawla, Anil Kumar, Gaurav Sharma, Dhawal Mohan, Prateek Bhatia,HAdvs. for the Respondents.

ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA &ORS.

The following Judgment of the Court was passed:

JUDGMENT

1. The petitioners in all these petitions are the Overseas Citizensof India card holders. They are all students who have just reached thefull age or are below this age. All the petitioners are aspiring to becomeDoctors by pursuing the MBBS course by securing admission throughNEET selection process and thereafter the post-graduation as also thesuper specialty in the field of medicine. Some of them are also seekingto pursue post-graduation and also super specialty. For the purpose ofnarration of facts, the averments as put forth in W.P.(C) No.891 of 2021which was taken as the lead case is noted. The petitioners contend thatthey have been putting in all efforts and were preparing to appear forthe NEET-UG examinations based on the right which was available tothem under the notifications dated 11.04.2005 and 05.01.2009. Throughthe said notifications, the Overseas Citizens of India (‘OCI’ for short)cardholders were given the right of parity with Non-Resident Indians(‘NRIs’ for short) in respect of the facilities as notified, including in thefield of education, who in turn had the parity with Indian Citizens. Throughthe notification dated 05.01.2009, the said right to education in India wasalso extended further, to appear for the All India Pre-Medical Test orsuch other tests to make them eligible for admission in pursuance to theprovisions contained in the relevant acts. In view of such right beingextended to the OCI Cardholders by respondent No.1 in exercise of thepowers under Section 7B(1) of the Citizenship Act, 1955 (“Act 1955”for short), the petitioners were also assured of appearing for the NEET-UG exam so as to compete to secure seat to pursue the medical course.2. Such right was available to the petitioners from point almostimmediately after their birth, since the petitioners in these petitions wereborn in the year 2003 onwards. Except for the fact that they were bornin foreign country, they had lived in this country for periods rangingfrom 10 to 15/17 years. In that view, the entire educational career waspursued in India, including the 12[th] standard so as to qualify for the NEET-UG examinations and MBBS Course. In fact, in most of the cases, bothparents of the petitioners herein are Indian nationals and in any case,one of them is an Indian national. Even in cases where both the parentsare OCI Cardholders, the children have lived most of their life in Indiasince their roots remain to be in India where grandparents and familyare here.

BCD

A3. When this was the position the respondent No.1 issued thenotification dated 04.03.2021 in exercise of the power under Section7B(1) of Act, 1955 whereunder the existing right of appearing for theEntrance Exams to compete with Indian Citizens for the seat was takenaway and restricted the admission only as against the seats reserved forthe Non-Resident Indians or for supernumerary seats. The proviso toBclause 4(ii) of the impugned notification dated 04.03.2021 in fact clarifiesthat the OCI cardholders shall not be eligible for admission against anyseat reserved exclusively for Indian Citizens. This is done so, by providingan explanation that the OCI Cardholder is foreign national holdingpassport from foreign country and is not citizen of India.C4. The petitioners, therefore, contend that such notification fallsfoul of the Doctrine of Non -Retrogression since the right which wasbeing bestowed from the year 2005, instead of progressing and maturingto be better right was being curtailed and reversed. The petitionersalso contend that the right guaranteed under Articles 14 and 21 of theDConstitution of India is violated since such right is available to “anyperson”, even if one is not citizen of India. In the instant facts, thepetitioners have no quarrel with the validity of Sections 7B(1), 7D, 8(1)and 9(1) of Act, 1955. The petitioners while accepting the sovereignpower of the respondents, are only aggrieved by the manner in whichthe impugned notification dated 04.03.2021 is issued, by which an existingEright has been taken away. The petitioners thus contend that they arenot only OCI Cardholders, but are resident OCI Cardholders and thereforethey should be treated like any other Citizen of India. Since respondentNo.1 through the impugned notification has disentitled the OCICardholders from the process of admission to the seats to which theFIndian citizens are entitled to participate in the selection process, theyhave approached this court assailing the impugned notification dated04.03.2021, in these petitions under Article 32 of the Constitution ofIndia.

5. The petitioners have accordingly sought for issue of anGappropriate writ to quash clause 4(ii), its proviso and Explanation (1) ascontained in the impugned notification dated 04.03.2021 bearing FNo.2611/CC/05/2018-OCI.

6. The respondent No.1 has filed its objection statement seekingto justify the notification. It is necessary to take note herein that thoughin the instant batch of the petitions, the validity of the provisions in theH

Citizenship Act has not been assailed, in an another petition bearingW.P.(C) No.1397 of 2020 since there is challenge to the said provisionsand was earlier tagged with these petitions, the respondents in the commoncounter affidavit have also referred to the provisions of the Act and theConstitution of India in order to justify its validity. Since those aspects donot require consideration in this batch of cases, the objections byrespondent No.1 insofar as seeking to justify the issue of the impugnednotification dated 04.03.2021 alone is taken note. In that regard, it iscontended that as per the notification dated 11.04.2005, the OCICardholders were given parity with NRIs in the educational field. Underthe notification dated 05.01.2009, the OCI Cardholder students wereentitled to appear for All India Pre Medical Test and such other tests tomake them eligible for admission. It is averred that harmonious readingof 2005 and 2009 notifications leads to the conclusion that the OCICardholder students have parity to the NRIs and therefore can lay claimonly to NRI quota seats. The educational right of OCI Cardholder studentswere discussed in meeting of the Committee of Secretaries held on19.07.2018 wherein it was agreed that the OCI Cardholders may betreated at par with NRI, in the quota of NRI and they ought not to beeligible against seats meant for Indian citizens. Hence, it was felt thatrelevant notifications be issued by the Ministry of Home Affairs. In thatview, the consolidated notification dated 04.03.2021 was issued in exerciseof the power under Section 7B(1) of Act, 1955 whereby the earliernotifications of 2005, 2007 and 2009 were incorporated so as to bringclarity with regard to the various provisions. It is contended that therationale is to protect the rights of the Indian Citizens and in such matters,State may give preference to its citizens vis-à-vis foreigners holdingOCI Cards. In that regard it is stated that the number of seats availablefor medical and engineering courses in India are very limited and doesnot fully cater to the requirement of the Indian citizens. Hence the rightto admission to such seats should be primarily available to Indian citizensinstead of foreigners including OCI Cardholders. It is contended that theright to claim the protection under Article 14, 19 and 21 of the Constitutionare not available to person who is not citizen, more particularly inmatters of education and is limited to the privilege bestowed through anotification issued under the Act. The respondent No.1 therefore seeksto justify and sustain the notification dated 04.03.2021, portion of whichis under challenge.

DEF

A7. In the light of the above we have heard Mr. P. Chidambaramand Mr. K.V. Viswanathan learned senior counsels for the respectivepetitioners as also Mr. Kunal Cheema and the other learned counselsappearing for the respective petitioners. We have also heard Ms.Aishwarya Bhati, learned Additional Solicitor General for the respondents.In that light, we have perused the petition papers and all the documentsBmade available to us.

8. The summary of the arguments on behalf of the petitioners isas hereunder;

This Court vide order dated 8.11.2021 in WP 1397 of 2020 passedCa general order applicable to all eligible candidates who are similarlysituated to appear for counselling in General at par with Indiancitizens and same was made applicable to variety of coursesstated therein.

Many of the Petitioners in WP No.891 of 2021, who were allDNEET-2021 aspirants, appeared for NEET 2021 and also qualifiedand have secured admissions and are pursuing their academiccourses. They would be in their 2nd year of studies. There wouldbe other OCIs also who are not part of the writ petitions, butwould have taken the benefit of the order dated 08.11.2021 passedby this Hon’ble Court, which was general order applicable toEall.

The OCIs have been equated with NRIs all along since 2005 asregards various rights conferred under

Section 7B(1) of the Citizenship Act and more particularly rightsFregarding education. That vide notification dated 05.01.2009, OCIswere permitted to carry out various professions in India asenumerated therein.

That in view of the various rights having been given and moreparticularly education rights and right to work in India and alsobecause many OCIs have their grandparents/families/roots inGIndia, they came back to India long back and have been residingand working here and contributing to the nation like any othercitizen in the form of taxes etc. The span of living here ranges aslong as about 16 to 17 years.

That till up to 04.03.2021 (impugned notification), OCIs wereentitled to seek admission to all seats like NRIs were (who arestill entitled to) and not restricted to only NRI seats orsupernumerary seats, but pursuant to the said portion of theimpugned notification, OCIs are now entitled to only seats reservedfor NRI i.e. NRI seats or supernumerary seats, which isdiscriminatory and violative of Article 14 and 21 of the Constitutionof India.

Article 14 prohibits class legislation, but permits reasonableclassification. However, for reasonable classification to be valid,there are twin tests i.e. (i) classification must be founded onintelligible differentia and (ii) that the differentia must have rationalrelation to the object sought to be achieved. The seats haveremained, unfilled. Hence Indian Citizens are not prejudiced.

That Article 14 and 21 are available to “persons” and not onlycitizens and hence the OCIs who are “persons” and who havebeen residing in India for years together, in view of the rights ofliving (since life long visa is granted) and undertaking variousprofessions in India granted under section 7B vide 05.01.2009notification, have right not to be discriminated against, which isguaranteed under Article 14 and also have right of meaningfulexistence, which is facet of Article 21 of the Constitution ofIndia. Moreover, there is no valid rationale for having withdrawnthe said rights of being entitled to various seats other than seatsreserved for NRIs, which they have been enjoying for considerableamount of time at par with NRIs, who today (notification dated12.10.2022) also are entitled to all seats including seats reservedfor Non-Residents.

It is further contended that the only object as can be culled outfrom the Counter Affidavit of the Respondent no.1 appears to beto protect rights of Indian citizens as seats are limited. However,if the statistics of past few years i.e 2018-2019 onwards are seen,even when the OCIs were entitled to all seats and they tookadmissions then, few hundred seats were remaining vacant at theend of final counselling. In fact the data also shows that seatshave been significantly increased year on year, yet at the end offinal counseling seats have remained vacant. Hence, it is clearthat the said objective is misnomer and the said portion of the

Aimpugned notification smacks of arbitrariness and non-applicationof mind.

The said portion of the impugned notification falls foul of thedoctrine of “non-retrogression” as discussed in the matter ofNavtej Singh Johar [2018 (10) SCC 1], as it is resulting inBwithdrawal of the rights which the OCIs have enjoyed for thepast several years.

OCIs have taken up particular stream of education, passing 10thand 12th from schools in same state, meeting domicile/residencerequirements, keeping in mind the rights which were available toCthem and hence their such acts would be saved as “things done”as per the words “except as respect things done or omitted to bedone before such supersession” appearing in impugned notificationdtd 04.03.2021. In support of this submission, reliance was placedon Universal Import Agency and Anr. v. The Chief Controllerof Imports and Exports and Ors. [1961 (1) SCR 305]

The OCIs were entitled to have “legitimate expectation” asenshrined in the case of Navjyoti [1992 (4) SCC 477] that thesaid rights will continue to be available to them and not retrograded.That only limited number of OCIs take the exam and out ofthem only minuscule number clear the same and become eligibleEfor admission. Hence no grave prejudice was being caused if theOCIs were allowed to seek admission to all seats based on meritand withdrawal of the same is therefore arbitrary andunreasonable.

9. The summary of the contention on behalf of the respondents asFput forth by the learned Additional Solicitor General is as follows;

The present case essentially raises singular issue with regard tothe classification made between Indian citizens and Overseas Citizensof India cardholders and the same being statutory, whether it is sustainable.It is contended that the classification made by the impugned notificationGis supported by statutory provisions which legitimizes the State’s interestand ensures that the limited number of seats in educational institutionsare available to Indian citizens and not taken away by foreigners. It iscontended that for any sovereign country, the rights and privileges thatare extended to the non-citizens are in exercise of inviolable sovereignpowers and are essentially unfettered and unqualified. The courts haveH

consistently declined to interfere in visa, immigration or such issues relatingto foreigners. The power of exclusion of foreigners being an incident ofsovereignty is that of the Government to be exercised. The OCI regimeis privilege extended by the Parliament and the Executive, fallingsquarely in the domain of the sovereign policy of the country. TheCitizenship is regulated in Part II (Articles 5 to 11) of the Constitution ofIndia pursuant to which the Citizenship Act is enacted to regulate thesame. Section 2(ee) of the Citizenship Act defines OCI cardholders tomean person registered as an Overseas Citizens of India cardholderby the Central Government under Section 7A of the Act. The learnedAdditional Solicitor General on referring to the said constitutional provisionsand the Citizenship Act would point out that the privilege of securingeducation in India was pursuant to the conferment of the same in termsof Section 7(B) of the Act by the issue of notification.10. The Notification dated 04.03.2021 which is impugned in thesepetitions is issued by the Ministry in continuation of the policy of theUnion of India in conformity with the constitutional principles. Withreference to the Notification, it is contended that it is very evident andclear that the intention was not to give the OCI cardholders parity withIndian citizens at any stage with regard to admission but the parity wasalways with NRIs. The policy was consistent from 2004 when the OCIcardholders’ mechanism was started, to treat them at par with the NRIs.However, there was some dichotomy in the interpretation of the earlierNotifications and the benefit which was available to the NRIs for theseats along with Indian citizen students was also being extended.Therefore, after comprehensive consultation on the educational rightsof the OCI cardholders in the meeting held on 19.07.2018 it was decidedthat the OCI cardholders may be treated at par with NRIs in the quotafor NRI seats and they would not be eligible against the seats meant forIndian citizens.

11. Hence the issue of the consolidated Notification of 04.03.2021was in supersession of earlier Notifications of 2005, 2007, and 2009 tobring clarity with regard to various provisions which were underconsideration of the Ministry of Home Affairs for quite some time. Inthis context, consultations were held with all stakeholders and theNotification was issued.

12. Reference to the judgments cited by the learned AdditionalSolicitor General to substantiate her contention that the consideration

Awith regard to the validity of the Notification cannot be of similarpurport when it is assailed by the citizens of India and other decisionsreferred to would be considered at the appropriate stage. The sum andsubstance of the contention is that the decision is with the object oflegitimate public interest and in the interest of the Indian citizens. Hence,it is contended that the impugned Notification does not call for interferenceBand the petitioners are not entitled to seek any relief from this Court.13. In the light of rival contentions, at the threshold it is necessaryto take note that though the arguments were elaborately addressed andthe learned Additional Solicitor General referred in detail to the provisionsof the constitution relating to citizenship and also the sovereign power ofCthe respondent No.1 under the Act, 1955, we do not find it necessary todwell into much detail in this batch of petitions. This is for the reasonthat from the very case put forth by the petitioners they are not questioningthe power of respondent No.1 to issue notifications prescribing the rightin respect of OCI Cardholders. However, the grievance is only that

Dright which existed in their favour has been altered to their detrimentwithout application of mind to the fact that most of the petitioners havespent their entire lifetime in India and also pursued their educationalcareers in India including appearing for the qualifying exam. As such theonly grievance of the petitioners herein is with regard to the proviso toclause 4(ii) and Explanation contained in the impugned notification datedE04.03.2021 whereunder limitation has been prescribed wherein theyhave been made entitled only to the seats available to NRIs and theyhave been specifically excluded from seeking admission to the seatswhich are exclusively available to the Indian citizens.

14. In that regard, the provisions of Act, 1955 which are to beFnoted read as hereunder:-

“7A. Registration of overseas citizens of India Cardholder.-(1) The Central Government may, subject to such conditions,restrictions and manner as may be prescribed, on an applicationmade in this behalf, register as an Overseas Citizen of IndiaCardholder-G

(a) any person of full age and capacity,-

(i) who is citizen of another country, but was citizen of Indiaat the time of, or at any time after, the commencement of theConstitution; or

(ii) who is citizen of another country, but was eligible to becomea citizen of India at the time of the commencement of theConstitution; or

(iii) who is citizen of another country, but belonged to territorythat became part of India after the 15th day of August, 1947;or

(iv) who is child or grandchild or great grandchild of sucha citizen; or

(b) person, who is minor child of person mentioned in clause(a); or

(c) person, who is minor child, and whose both parents arecitizens of India or one of the parents is citizen of India; or

(d) spouse of foreign origin of citizen of India or spouse of foreignorigin of an Overseas Citizen of India Cardholder registered undersection 7A and whose marriage has been registered and subsistedfor continuous period of not less than two years immediatelypreceding the presentation of the application under this section:

Provided that for the eligibility for registration as an OverseasCitizen of India Cardholder, such spouse shall be subjected toprior security clearance by competent authority in India:

Provided further that no person, who or either of whoseparents or grandparents or great grandparents is or had been acitizen of Pakistan, Bangladesh or such other country as the CentralGovernment may, by notification in the Official Gazette, specify,shall be eligible for registration as an Overseas Citizen of IndiaCardholder under this sub-section.

2. The Central Government may, by notification in the OfficialGazette, specify the date from which the existing Persons of IndianOrigin Cardholders shall be deemed to be Overseas Citizens ofIndian Cardholders.

Explanation.- For the purposes of this sub-section, “Personsof Indian Origin Cardholders” means the persons registered assuch under notification number 26011/4/98 F.I., dated the 19thAugust, 2002, issued by the Central Government in this regard.

A3. Notwithstanding anything contained in sub-section (1), theCentral Government may, if it is satisfied that specialcircumstances exist, after recording the circumstances in writing,register person as an Overseas Citizen of India Cardholder.”

“7B. Conferment of rights on Overseas Citizen of IndiaBCardholder (1) Notwithstanding anything contained in anyother law for the time being in force, an Overseas Citizenof India Cardholder shall be entitled to such rights [otherthan the rights specified under sub-section (2)] as theCentral Government may, by notification in the OfficialGazette, specify in this behalf.C

(2) An Overseas Citizen of India Cardholder shall not be entitledto the rights conferred on citizen of India-

(a) under article 16 of the Constitution with regard to equality ofopportunity in matters of public employment;

(b) under article 58 of the Constitution for election as President:

(c) under article 66 of the Constitution for election of Vice-President;

(d) under article 124 of the Constitution for appointment as Judgeof the Supreme Court;E(e) under article 217 of the Constitution for appointment as Judgeof the High Court;

(f) under section 16 of the Representation of the People Act,1950 (43 of 1950) in regard to registration as voter;F(g) under sections 3 and 4 of the Representation of the PeopleAct, 1951 (43 of 1951) with regard to the eligibility for being amember of the House of the People or of the Council of States,as the case may be;

(h) under sections 5, 5A and 6 of the Representation of the PeopleGAct, 1951 (43 of 1951) with regard to the eligibility for being amember of the Legislative Assembly or the Legislative Council,as the case may be, of State;

(i) for appointment to public services and posts in connection withthe affairs of the Union or of any State except for appointment in

such services and posts as the Central Government may, by specialorder in that behalf specify.

(3) Every notification issued under sub-section (1) shall be laidbefore each House of Parliament.”

(emphasis supplied)

15. The above-noted provisions were inserted initially during theyear 2004 and were thereafter substituted on the introduction of theprovisions in the year 2005 and substituted time to time thereafter. Onforeign citizens of such category being given the status of OCICardholders, it also provided for conferment of rights on OCI Cardholdersas contemplated under Section 7B of Act, 1955 (supra).

16. In exercise of the said power under Section 7B(1) of Act,1955 the notification dated 11.04.2005 was issued which provides ashereunder:-

“MINISTRY OF HOME AFFAIRS

NOTIFICATION

New Delhi, the 11[th] April, 2005

S.O. 542(E)- In exercise of the powers conferred by Sub-section(1) of Section 7B of the Citizenship Act, 1955 (57 of 1955), theCentral Government hereby specifies the following rights to whichthe persons registered as Overseas Citizens of India under Section7A of the said Act shall be entitled, namely:-

(a) grant of multiple entry lifelong visa for visiting India for anypurpose;

(b) exemption from registration with Foreign Regional Officer orForeign Registration Officer for any length of stay in India; and

(c) parity with Non-Resident Indians in respect of allfacilities available to them in economic, financial andeducational fields except in matters relating to theacquisition of agricultural or plantation properties.

[F.No. 26011/2/2005-IC]DURGA SHANKER MISHRA, Jt. Secy.”

(emphasis supplied)

A17. Through the said notification, apart from granting multiple entrylife-long visa for visiting India for any purpose, insofar as economic,financial and educational fields, parity with Non-Resident Indians wasprovided, except for acquisition of agricultural or plantation properties.By subsequent notification dated 05.01.2007 issued under Section 7B(1)of Act, 1955, though no right relating to the field of education was referredBto, the OCI Cardholders were given similar treatment with Non-ResidentIndians in the matter of inter-country adoption of Indian children andalso to be treated at par with the Indian Nationals in the matter oftariffs in air fares and also for same entry fee being charged todomestic Indian visitors to visit National Parks and WildlifeCSanctuaries.

18. Further, notification dated 05.01.2009 relating to pursuingprofessions and admission to professional course was issued, which readsas hereunder:

“MINISTRY OF OVERSEAS INDIAN AFFAIRSNOTIFICATION

New Delhi, the 5[th] January 2009

S.O.36(E) - In exercise of the powers conferred by sub-section(1) of Section 7B of the Citizenship Act, 1955 (57 of 1955), and inEcontinuation of the notifications of the Government of India in theMinistry of Home Affairs number S.O.542(E), dated the 11th April,2005 and in the Ministry of Overseas Affairs S.O.12(E), datedthe 6th January, 2007, the Central Government hereby specifiesthe following rights to which the persons registered as the overseascitizen of India under Section 7A of the said Act, shall be entitled,Fnamely :-

(a)Parity with non-resident Indian in respect of,-

(i)Entry fees to be charged for visiting the national monuments,historical sites and museums in India;

(ii)Pursuing the following professions in India, inpursuance of the provisions contained in the relevantact, namely:-

(i)Doctors, dentists, nurses and pharmacists;

H(ii)Advocates;

(iii)Architects;

(iv)Chartered accountants;

(b)To appear for the All India Pre-Medical Test or suchother tests to make them eligible for admission inpursuance of the provisions contained in the relevantActs.

[F.No.OI-15013/13/2008-DS]

D.N. SRIVASTAVA, Jt. Secy.”

(emphasis supplied)

19. Through the said notification dated 05.01.2009 the OCICardholders were given the right to pursue the professionsindicated therein, in India and also to appear for the All-IndianPre-Medical Test or such other tests to make them eligible foradmission in pursuance of the provisions contained in the relevantActs. Since NRIs had parity with the Indian Citizens in that regard, thesame benefit became extended to the OCI Cardholders including thepetitioners herein.

20. cumulative perusal of the three notifications of 2005, 2007and 2009 heavily relied on by the learned senior counsel for the petitionerswould certainly indicate that from the stage of amendment to Act, 1955through Section 7A to 7D thereof and the notifications issued pursuantthereto, conferring rights under Section 7B(1) and such right beingexpanded from stage to stage, it would indicate that based on the need,progression was made in conferring better right to the Overseas Citizensof India who, except for the incident of their birth in foreign countrywere in all other respects similarly placed as that of Indian citizens andthe limited foreign affiliation of NRI and OCI Cardholders made them tobe compared with each other for parity. In fact, for the purpose of airfares and entry fee to places of interest, they were given paritywith Indian nationals. It is in that view contended that taking awaysuch right that was available in the changing social scenario wouldamount to retrogression when in fact better right should have beenconferred.

21. In that background, it would be necessary to refer to theimpugned notification dated 04.03.2021 which reads as hereunder:

“MINISTRY OF HOME AFFAIRSNOTIFICATION

New Delhi, the 4[th] March, 2021

S.O. 1050(E) – In exercise of the powers conferred by sub-sectionB(1) of section 7B of the Citizenship Act, 1955 (57 of 1955) and insupersession of the notification of the Government of India in theMinistry of Home Affairs published in the Official Gazette videnumber S.O. 542(E), dated the 11[th] April, 2005 and the notificationsof the Government of India in the erstwhile Ministry of OverseasIndian Affairs published in the Official Gazette vide numbers S.O.C12(E), dated the 5[th] January, 2007 and S.O. 36(E), dated the 5thJanuary, 2009, except as respect things done or omitted to bedone before such supersession, the Central Government herebyspecifies the following rights to which an Overseas Citizen ofIndia Cardholder (hereinafter referred to as the OCI cardholder)Dshall be entitled, with effect from the date of publication of thisnotification in the Official Gazette, namely:-

(1)grant of multiple entry lifelong visa for visiting Indiafor any purpose

Provided that for undertaking the following activities, theOCI cardholder shall be required to obtain specialpermission or Special Permit, as the case may be, fromthe competent authority or the Foreigners RegionalRegistration Officer or the Indian Mission concerned,namely:-

(i)to undertake research;

(ii)to undertake any Missionary or Tabligh orMountaineering or Journalistic activities;

(iii)to undertake internship in any foreign DiplomaticMissions or foreign Government organisations in Indiaor to take up employment in any foreign DiplomaticMissions in India;

(iv)to visit any place which falls within the Protected orRestricted or prohibited areas as notified by theCentral Government or competent authority;

(2)exemption from registration with the ForeignersRegional Registration Officer or ForeignersRegistration Officer for any length of stay in India:

Provided that the OCI cardholders who are normally residentin India shall intimate the jurisdictional Foreigners RegionalRegistration Officer or the Foreigners Registration Officerby email whenever there is change in permanent residentialaddress and in their occupation;

(3)parity with Indian nationals in the matter of,-

(i)tariffs in air fares in domestic sectors in India;and

(ii)entry fees to be charged for visiting national parks,wildlife sanctuaries, the national monuments, historicalsites and museums in India;

(4)parity with Non-Resident Indians in the Matter of,-

(i)inter-country adoption of Indian children subject tothe compliance of the procedure as laid down by thecompetent authority for such adoption;

(ii)appearing for the all India entrance tests suchas National Eligibility cum Entrance Test, JointEEntrance Examination (Mains), Joint EntranceExamination (Advanced) or such other tests tomake them eligible for admission only againstany Non-Resident Indian seat or anysupernumerary seat;

Provided that the OCI cardholder shall not beeligible for admission against any seat reservedexclusively for Indian citizens.

(iii)Purchase or sale of immovable properties other thanagricultural land or farm house or plantation property;and

(iv)Pursuing the following professions in India asper the provisions contained in the applicablerelevant statutes or Acts as the case may be,namely:-

A(a)doctors, dentists, nurses and pharmacists;(b)advocates;

(c)architects;

(d)chartered accountants;

B(5)in respect of all other economic, financial and educationalfields not specified in this notification or the rights andprivileges not covered by the notifications made by theReserve Bank of India under the Foreign ExchangeManagement Act, 1999 (42 of 1999), the OCI cardholderCshall have the same rights and privileges as foreigner.

Explanation – For the purposes of this notification,-

(1)The OCI Cardholder (including PIO cardholder) isa foreign national holding passport of foreign countryand is not citizen of India.D

(2)“Non-resident Indian” shall have the same meaning asassigned to it in the Foreign Exchange Management(Acquisition and Transfer of Immovable Property in India)Regulations, 2018 made by the Reserve Bank of Indiaunder the Foreign Exchange Management Act, 1999 (42 ofE1999) and who fulfills the “Non-Resident Indian” status asper the Income Tax Act, 1961 (43 of 1961).

[F.No.26011/CC/05/2018-OCI]PRAMOD KUMAR,

FDirector”

(emphasis supplied)

22. perusal of the notification dated 04.03.2021 would ex facieindicate that the rights bestowed thereunder on the OCI Cardholdersare in fact consolidation of the rights which had been bestowed throughGthe notification dated 11.04.2005, 05.01.2007 and 05.01.2009. However,the impugned portion of the notification is the portion which has beenemphasised i.e. the proviso to clause 4(ii) and Explanation (1) theretoand limiting the parity only to NRI seats and supernumerary seats. Throughthe impugned portion of the notification, the parity which existed withNon-Resident Indians including in the field of education has been modifiedHto indicate their eligibility for admission only against any “Non-ResidentIndian seat” or any supernumerary seat. It is relevant to take note hereinthat the Non-Resident Indians apart from the seats reserved only forNon-Resident Indians, are also entitled to participate in the selectionprocess for allotment of seats along with the Indian citizens for theremaining seats as well, which benefit was hitherto available to OCICardholders by virtue of their parity with NRIs. However, by presentlyspecifying that the OCI Cardholders would be eligible for only the Non-Resident Indian seat or any supernumerary seat, the right available tothe OCI Cardholders is only for the seats which are reserved as NRIquota seats, for which they would have to compete with the NRIcandidates for the limited number of seats, for which higher fee structureis also fixed. The proviso thereto makes it clear that the OCI Cardholdersshall not be eligible for admission against any seat reserved exclusivelyfor Indian citizens. The provision contained in the impugned portion ofthe notification dated 04.03.2021 would indicate that the OCI Cardholderseven if they have settled down in India and have undergone their entireeducational course in India but not having renounced the citizenship of aforeign country and not having acquired the citizenship of India will nowbe denied the opportunity of securing medical seat in the general poolof Indian citizens including NRIs and will have to compete only for thelimited seats available under the NRI quota, which would be denial ofan opportunity of education to such OCI Cardholders which was hithertoavailable. It is in that view contended that legitimate expectation of thepetitioners herein is being defeated and they are also being discriminatedupon due to which there is violation of Article 14 of the Constitution.

23. In the above backdrop it would be appropriate to refer to theprecedents cited and relied upon by the learned counsel for all the partiesincluding the respondents.

24. In support of the case of the petitioners, Shri P. Chidambaram,learned Senior Counsel placed reliance on the decision in (1978) 1 SCC248 Maneka Gandhi vs. Union of India, to contend that unreasonableclassification is not permissible, wherein, inter alia, it is held as hereunder;

“7. Now, the question immediately arises as to what is therequirement of Article 14 : what is the content and reach of thegreat equalising principle enunciated in this article? There can beno doubt that it is founding faith of the Constitution. It is indeedthe pillar on which rests securely the foundation of our democratic

Arepublic. And, therefore, it must not be subjected to narrow,pedantic or lexicographic approach. No attempt should be madeto truncate its all-embracing scope and meaning, for to do so wouldbe to violate its activist magnitude. Equality is dynamic conceptwith many aspects and dimensions and it cannot be imprisonedwithin traditional and doctrinaire limits. We must reiterate hereBwhat was pointed out by the majority in E.P. Royappa v. State ofTamil Nadu namely, that “from positivistic point of view, equalityis antithetic to arbitrariness. In fact equality and arbitrariness aresworn enemies; one belongs to the rule of law in republic, whilethe other, to the whim and caprice of an absolute monarch. WhereCan act is arbitrary, it is implicit in it that it is unequal both accordingto political logic and constitutional law and is therefore violative ofArticle 14”. Article 14 strikes at arbitrariness in State action andensures fairness and equality of treatment. The principle ofreasonableness, which legally as well as philosophically, is anessential element of equality or non-arbitrariness pervades ArticleD14 like brooding omnipresence and the procedure contemplatedby Article 21 must answer the test of reasonableness in order tobe in conformity with Article 14. It must be “right and just andfair” and not arbitrary, fanciful or oppressive; otherwise, it wouldbe no procedure at all and the requirement of Article 21 would notEbe satisfied.”

25. On the contention relating to the doctrine of non-retrogressionthe decision in Navtej Singh Johar & Ors. vs. Union of India Thr.Secretary Ministry of Law and Justice (2018) 10 SCC 1 is reliedupon, wherein it is observed as hereunder:F

“199. What the words of Lord Roskill suggest is that it is not onlythe interpretation of the Constitution which needs to be pragmatic,due to the dynamic nature of Constitution, but also the legalpolicy of particular epoch must be in consonance with the currentand the present needs of the society, which are sensible in theprevalent times and at the same time easy to apply.

200. This also gives birth to an equally important role of the Stateto implement the constitutional rights effectively. And of course,when we say State, it includes all the three organs, that is, thelegislature, the executive as well as the judiciary. The State has toshow concerned commitment which would result in concrete

action. The State has an obligation to take appropriate measuresfor the progressive realisation of economic, social and culturalrights.

201. The doctrine of progressive realisation of rights, as naturalcorollary, gives birth to the doctrine of non-retrogression. As perthis doctrine, there must not be any regression of rights. In aprogressive and an ever-improving society, there is no place forretreat. The society has to march ahead.

202. The doctrine of non-retrogression sets forth that the Stateshould not take measures or steps that deliberately lead toretrogression on the enjoyment of rights either under theConstitution or otherwise.”

26. The decision in (1995) 5 SCC 482 LIC Vs. ConsumerEducation and Research Centre was relied on to contend that everyactivity of public authority must be informed by reasons and guided bypublic interest and the exercise of discretion or power by public authoritymust be judged by that standard. Para 24 and 30 of the decision reliedupon is as hereunder:

“24. In Dwarkadas Marfatia & Sons v. Board of Trustees ofthe Port of Bombay [(1989) 3 SCC 293 : (1989) 2 SCR 751] itwas held that the Corporation must act in accordance with certainconstitutional conscience and whether they have so acted mustbe discernible from the conduct of such Corporations. Everyactivity of public authority must be informed by reasons and guidedby the public interest. All exercises of discretion or power bypublic authority must be judged by that standard. In that casewhen the building owned by the port trust was exempted from theRent Act, on terminating the tenancy for development whenpossession was sought to be taken, it was challenged under Article226 that the action of the port trust was arbitrary and no publicinterest would be served by terminating the tenancy. In that context,this Court held that even in contractual relations the Court cannotignore that the public authority must have constitutional conscienceso that any interpretation put up must be to avoid arbitrary action,lest the authority would be permitted to flourish as imperium inimperio. Whatever be the activity of the public authority, it mustmeet the test of Article 14 and judicial review strikes an arbitraryaction.

A30. The contention of the appellants is that the offending clause isa valid classification. The salaried group of lives from theGovernment, semi-Government or reputed commercial institutionsform class. With view to identify the health conditions, thepolicy was applied to that class of lives. No mandamus would beissued to declare the classification as unconstitutional when it bearsBreasonable nexus to the object and there is intelligible differentiabetween the salaried lives and the rest. The High Court, therefore,was wrong in declaring the offending clause as arbitrary violatingArticle 14. It is true that the appellant is entitled to issue the policyapplicable to particular group or class of lives entitled to availCcontract of insurance with the appellant but class or groupdoes mean that the classification meets the demand of equality,fairness and justness. The doctrine of classification is only asubsidiary rule evolved by the courts to give practical content tothe doctrine of equality, overemphasis on the doctrine ofclassification or anxious or sustained attempt to discover someDbasis for classification may gradually and imperceptibly erode theprofound potency of the glorious content of equality enshrined inArticle 14 of the Constitution. The overemphasis on classificationwould inevitably result in substitution of the doctrine of classificationto the doctrine of equality and the Preamble of the ConstitutionEwhich is an integral part and scheme of the Constitution. ManekaGandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC248] ratio extricated it from this moribund and put its elasticity foregalitarian path finder lest the classification would deny equalityto the larger segments of the society. The classification based onemployment in Government, semi-Government and reputedFcommercial firms has the insidious and inevitable effect ofexcluding lives in vast rural and urban areas engaged in unorganisedor self-employed sectors to have life insurance offending Article14 of the Constitution and socio-economic justice.”27. Shri K.V. Viswanathan, learned senior counsel while contendingGthat the right which had accrued cannot be taken away and the ‘thingsdone’ or ‘omitted to be done’ before such supersession is to be kept inview, has relied on the decision in (1961) 1 SCR 305 Universal ImportsAgency & Ans. Vs. Chief Controller of Imports and Exports andOrs. wherein it is held as hereunder:H

“16. What were the “things done” by the petitioners under thePondicherry law? The petitioners in the course of their importtrade, having obtained authorization for the foreign exchangethrough their bankers, entered into firm contracts with foreigndealers on C.I.F. terms. In some cases irrevocable Letters ofCredit were opened and in others bank drafts were sent towardsthe contracts. Under the terms of the contracts the sellers had toship the goods from various foreign ports and the buyers were tohave physical delivery of the goods after they had crossed thecustoms barrier in India. Pursuant to the terms of the contracts,the sellers placed the goods on board the various ships, somebefore and others after the merger, and the goods arrived atPondicherry port after its merger with India. The prices for thegoods were paid in full to the foreign sellers and the goods weretaken delivery of by the buyers after examining them on arrival.Before the merger if the Customs Authorities had imposed anyrestrictions not authorised by law, the affected parties could haveenforced the free entry of the goods in court of law. On the saidfacts short question arises whether para 6 of the Order protectsthe petitioners. While learned counsel for the petitioners contendsthat “things done” take in not only things done but also their legalconsequences, learned counsel for the State contends that, as thegoods were not brought into India before the merger, it was not athing done before the merger and, therefore, would be governedby the enactments specified in the Schedule. It is not necessaryto consider in this case whether the concept of import not onlytakes in the factual bringing of goods into India, but also the entireprocess of import commencing from the date of the applicationfor permission to import and ending with the crossing of the customsbarrier in India. The words “things done” in para 6 must bereasonably interpreted and, if so interpreted, they can mean notonly things done but also the legal consequences flowing therefrom.If the interpretation suggested by the learned counsel for therespondents be accepted, the saving clause would becomeunnecessary. If what it saves is only the executed contracts i.e.the contracts whereunder the goods have been imported andreceived by the buyer before the merger, no further protection isnecessary as ordinarily no question of enforcement of the contractsunder the pre-existing law would arise. The phraseology used is

Anot an innovation but is copied from other statutory clauses. Section6 of the General clauses Act (10 of 1897) says that unless adifferent intention appears, the repeal of an Act shall not affectanything duly done or suffered thereunder. So too, the Public HealthAct of 1858 (38 & 39 Vict. c. 55) which repealed the PublicHealth Act of 1848 contained proviso to Section 343 to theBeffect that the repeal “shall not affect anything duly done orsuffered under the enactment hereby repealed”, This proviso cameunder judicial scrutiny in Queen v. Justices of the West Ridingof Yorkshire [(1876) 1 QBD 220] . There notice was given by alocal board of health of intention to make rate under the PublicCHealth Act, 1848, and amending Acts. Before the notice hadexpired these Acts were repealed by the Public Health Act, 1875,which contained saving of “anything duly done” under therepealed enactments, and gave power to make similar rate upongiving similar notice. The board, in ignorance of the repeal, madea rate purporting to be made under the repealed Acts. It wasDcontended that as the rate was made after the repealing Act, thenotice given under the repealed Act was not valid. The learnedJudges held that as the notice was given before the Act, the makingof the rate was also saved by the words “anything duly done”under the repealed enactments. This case illustrates the point thatEit is not necessary that an impugned thing in itself should havebeen done before the Act was repealed, but it would be enough ifit was integrally connected with and was legal consequence ofa thing done before the said repeal. Under similar circumstancesLindley, L.J., in Heston and Isleworth Urban District Councilv. Grout [(1897) 2 Ch 306] confirmed the validity of the rateFmade pursuant to notice issued prior to the repeal. Adverting tothe saving clause, the learned Judge tersely states the principlethus at p. 313: “That to my mind preserves that notice and theeffect of it”. On that principle the court of appeal held that therate which was the effect of the notice was good.”

28. The learned senior counsel, further on the principle of legitimateexpectation, relied on the decision in (1992) 4 SCC 477 NavjyotiCoop.Group Housing Society and Ors. Vs. Union of India & Ors.wherein it is observed as hereunder:

“15. It also appears to us that in any event the new policy decisionas contained in the impugned memorandum of January 20, 1990should not have been implemented without making such changein the existing criterion for allotment known to the Group HousingSocieties if necessary by way of public notice so that they mightmake proper representation to the concerned authorities forconsideration of their viewpoints. Even assuming that in the absenceof any explanation of the expression “first come first served” inRule 6(vi ) of Nazul Rules there was no statutory requirement tomake allotment with reference to date of registration, it has beenrightly held, as matter of fact, by the High Court that prior to thenew guideline contained in the memo of January 20, 1990 theprinciple for allotment had always been on the basis of date ofregistration and not the date of approval of the list of members. Inthe brochure issued in 1982 by the DDA even after Gazettenotification of Nazul Rules on September 26, 1981 the policy ofallotment on the basis of seniority in registration was clearlyindicated. In the aforesaid facts, the Group Housing Societies wereentitled to ‘legitimate expectation’ of following consistent pastpractice in the matter of allotment, even though they may nothave any legal right in private law to receive such treatment. Theexistence of ‘legitimate expectation’ may have number ofdifferent consequences and one of such consequences is that theauthority ought not to act to defeat the ‘legitimate expectation’without some overriding reason of public policy to justify its doingso. In case of ‘legitimate expectation’ if the authority proposesto defeat person’s ‘legitimate expectation’ it should afford himan opportunity to make representations in the matter. In thisconnection reference may be made to the discussions on‘legitimate expectation’ at page 151 of Volume 1(1) of Halsbury’sLaws of England , 4th edn. (re-issue). We may also refer to adecision of the House of Lords in Council of Civil Service Unionsv. Minister for the Civil Service [(1984) 3 All ER 935] . It hasbeen held in the said decision that an aggrieved person was entitledto judicial review if he could show that decision of the publicauthority affected him of some benefit or advantage which in thepast he had been permitted to enjoy and which he legitimatelyexpected to be permitted to continue to enjoy either until he wasgiven reasons for withdrawal and the opportunity to comment onsuch reasons.

DEF

A16. It may be indicated here that the doctrine of ‘legitimateexpectation’ imposes in essence duty on public authority to actfairly by taking into consideration all relevant factors relating tosuch ‘legitimate expectation’. Within the conspectus of fair dealingin case of ‘legitimate expectation’, the reasonable opportunitiesto make representation by the parties likely to be affected by anyBchange of consistent past policy, come in. We, have not beenshown any compelling reasons taken into consideration by theCentral Government to make departure from the existing policyof allotment with reference to seniority in registration byintroducing new guideline. On the contrary, Mr Jaitley the learnedCcounsel has submitted that the DDA and/or Central Governmentdo not intend to challenge the decision of the High Court and theimpugned memorandum of January 20, 1990 has since beenwithdrawn. We therefore feel that in the facts of the case it wasonly desirable that before introducing or implementing any changein the guideline for allotment, an opportunity to makeDrepresentations against the proposed change in the guideline shouldhave been given to the registered Group Housing Societies, ifnecessary, by way of public notice.”29. On behalf of the petitioners the decision to explain the Doctrineof Ultra Vires was also relied in (2007) 13 SCC 673 J.K. Industry Ltd.

Evs. Union of India wherein it is held as hereunder:

“127. At the outset, we may state that on account of globalisationand socio-economic problems (including income disparities in oureconomy) the power of delegation has become constituentelement of legislative power as whole. However, as held inFIndian Express Newspapers (Bombay) (P) Ltd. v. Union ofIndia, SCC at p. 689, subordinate legislation does not carry thesame degree of immunity which is enjoyed by statute passed bya competent legislature. Subordinate legislation may be questionedon any of the grounds on which plenary legislation is questioned.GIn addition, it may also be questioned on the ground that it doesnot conform to the statute under which it is made. It may furtherbe questioned on the ground that it is inconsistent with theprovisions of the Act or that it is contrary to some other statuteapplicable on the same subject-matter. Therefore, it has to yieldto plenary legislation. It can also be questioned on the ground that

it is manifestly arbitrary and unjust. That, any inquiry into its viresmust be confined to the grounds on which plenary legislation maybe questioned, to the grounds that it is contrary to the statuteunder which it is made, to the grounds that it is contrary to otherstatutory provisions or on the ground that it is so patently arbitrarythat it cannot be said to be in conformity with the statute. It canalso be challenged on the ground that it violates Article 14 of theConstitution.

128. Subordinate legislation cannot be questioned on the groundof violation of principles of natural justice on which administrativeaction may be questioned. distinction must, however, be madebetween delegation of legislative function in which case thequestion of reasonableness cannot be gone into and the investmentby the statute to exercise particular discretionary power. In thelatter case, the question may be considered on all grounds onwhich administrative action may be questioned, such as, non-application of mind, taking irrelevant matters into consideration,failure to take relevant matters into consideration, etc. Asubordinate legislation may be struck down as arbitrary or contraryto statute if it fails to take into account vital facts which expresslyor by necessary implication are required to be taken into accountby the statute or the Constitution. This can be done on the groundthat the subordinate legislation does not conform to the statutoryor constitutional requirements or that it offends Article 14 or Article19 of the Constitution. However, it may be noted that, notificationissued under section of the statute which requires it to be laidbefore Parliament does not make any substantial difference asregards the jurisdiction of the court to pronounce on its validity.”

30. Ms. Aishwarya Bhati, learned Additional Solicitor General, inseeking to distinguish the above-referred decisions contended that thecases referred to by the learned senior counsel for the petitioner are allin the context of the issues which had arisen in matters relating to Citizensof India against the State/Authorities or when the dispute arose forconsideration inter se between the Citizens of India. In that view, it iscontended that the petitioner cannot claim protection under Article 14,19 or 21 of the Constitution of India. Even for claiming any right underArticle 14, the same will emerge from Article 19 of the Constitution andas such protection cannot be accorded to foreigners.

A31. In addition, the learned Additional Solicitor General, toemphasize that policy decision in public interest cannot be interfered,referred to the decision in (1998) 4 SCC 117 State of Punjab and Ors.Vs. Ram Lubhaya Bagga & Ors.:

“25. Now we revert to the last submission, whether the new StateBpolicy is justified in not reimbursing an employee, his full medicalexpenses incurred on such treatment, if incurred in any hospital inIndia not being government hospital in Punjab. Question iswhether the new policy which is restricted by the financialconstraints of the State to the rates in AIIMS would be in violationof Article 21 of the Constitution of India. So far as questioning theCvalidity of governmental policy is concerned in our view it is notnormally within the domain of any court, to weigh the pros andcons of the policy or to scrutinize it and test the degree of itsbeneficial or equitable disposition for the purpose of varying,modifying or annulling it, based on howsoever sound and goodDreasoning, except where it is arbitrary or violative of anyconstitutional, statutory or any other provision of law. WhenGovernment forms its policy, it is based on number ofcircumstances on facts, law including constraints based on itsresources. It is also based on expert opinion. It would be dangerousif court is asked to test the utility, beneficial effect of the policy orEits appraisal based on facts set out on affidavits. The court woulddissuade itself from entering into this realm which belongs to theexecutive. It is within this matrix that it is to be seen whether thenew policy violates Article 21 when it restricts reimbursement onaccount of its financial constraints.”

32. On the contention relating to the reasonable classification testand foreigner not having right, the following decisions are relied uponby the learned Additional Solicitor General. They are;

(i)AIR 1962 SC 1052 Izhar Ahmed Khan & Ors. vs. Unionof India.

“38. The next point to consider is about the validity of Section9(2) itself. It is argued that this rule is ultra vires because itaffects the status of citizenship conferred on the petitionersand recognised by the relevant articles of the Constitution,and it is urged that by depriving the petitioners of the status

of citizenship, their fundamental rights under Article 19generally and particularly the right guaranteed by Article19(1)(e) are affected. It is not easy to appreciate thisargument. As we have already observed, the scheme ofthe relevant articles of Part II which deals with citizenshipclearly suggests that the status of citizenship can beadversely affected by statute made by the Parliament inexercise of its legislative powers. It may prima facie soundsomewhat surprising, but it is nevertheless true, that thoughthe citizens of India are guaranteed the fundamental rightsspecified in Article 19 of the Constitution, the status ofcitizenship on which the existence or continuance of thesaid rights rests is itself not one of the fundamental rightsguaranteed to anyone. If law is properly passed by theParliament affecting the status of citizenship of any citizensin the country, it can be no challenge to the validity of thesaid law that it affects the fundamental rights of those whosecitizenship is thereby terminated. Article 19 proceeds onthe assumption that the person who claims the rightsguaranteed by it is citizen of India. If the basic status ofcitizenship is validly terminated by Parliamentary statute,the person whose citizenship is terminated has no right toclaim the fundamental rights under Article 19. Therefore,in our opinion, the challenge to Section 9(2) on the groundthat it enables the rule-making authority to make rule todeprive the citizenship rights of the petitioners cannot besustained.”

(ii)AIR 1964 SC 1140 Indo-China Steam Navigation Co.Ltd.vs. Jasjit Singh & Ors.

35. There is one more point which must be mentioned beforewe part with this appeal. Mr Choudhary attempted to arguethat if mens rea was not regarded as an essential elementof Section 52-A, the said section would be ultra vires Articles14, 19 and 31(1) and as such, unconstitutional and invalid.We do not propose to consider the merits of this argument,because the appellant is not only company, but also aforeign company, and as such, is not entitled to claim thebenefits of Article 19. It is only citizens of India who have

ABC

been guaranteed the right to freedom enshrined in the saidarticle. If that is so, the plea under Article 31(1) as well asunder Article 14 cannot be sustained for the simple reasonthat in supporting the said two pleas, inevitably the appellanthas for fall back upon the fundamental right guaranteed byArticle 19(1)(f). The whole argument is that the appellantis deprived of its property by operation of the relevantprovisions of the Act and these provisions are invalid. Allthat Article 31(1) provides is that no person shall be deprivedof his property save by authority of law. As soon as thisplea is raised, it is met by the obvious answer that theappellant has been deprived of its property by authority ofthe provisions of the Act and that would be the end of theplea under Article 31(1) unless the appellant is able to takethe further step of challenging the validity of the act, andthat necessarily imports Article 19(1)(f). Similarly, when aplea is raised under Article 14, we face the same position.It may be that if Section 52-A contravenes Article 19(1)(f),a citizen of India may contend that his vessel cannot beconfiscated even if it has contravened Section 52-A, and inthat sense, there would be inequality between the citizenand the foreigner, but that inequality is the necessaryconsequence of the basic fact that Article 19 is confined tocitizens of India, and so, the plea that Article 14 iscontravened also must take in Article 19 if it has to succeed.The plain truth is that certain rights guaranteed to the citizensof India under Article 19 are not available to foreigners andpleas which may successfully be raised by the citizens onthe strength of the said rights guaranteed under Article 19would, therefore, not be available to foreigners. That beingso, we see no substance in the argument that if Section 52-A is construed against the appellant, it would be invalid, andso, the appellant would be able to resist the confiscation ofits vessel under Article 31(1). We ought to make it clearthat we are expressing no opinion on the validity of Section52-A under Article 19(1)(f). If the said question were toarise for our decision in any case, we would have to considerwhether the provisions of Section 52-A are not justified byArticle 19(5). That is matter which is foreign to the enquiryin the present appeal.

(iii)(1994) Supple 1 SCC 615 State of A.P. vs. KhudiramAChakma“75. It is true that fundamental right is available to aforeigner as held in Louis De Raedt v. Union of India[(1991) 3 SCC 554: 1991 SCC (Cri) 886] : (SCC p. 562,para 13)B“The next point taken on behalf of the petitioners, that theforeigners also enjoy some fundamental rights under theConstitution of this country, is also of not much help to them.The fundamental right of the foreigner is confined to Article21 for life and liberty and does not include the right to resideC“The next point taken on behalf of the petitioners, that theforeigners also enjoy some fundamental rights under theConstitution of this country, is also of not much help to them.The fundamental right of the foreigner is confined to Article21 for life and liberty and does not include the right to resideand settle in this country, as mentioned in Article 19(1)(e),which is applicable only to the citizens of this country.” Assuch Articles 19(1)(d) and (e) are unavailable to foreignersbecause those rights are conferred only on the citizens.Certainly, the machinery of Article 14 cannot be invoked toobtain that fundamental right. Rights under Articles 19(1)(d)and (e) are expressly withheld to foreigners.”

(iv)AIR 1955 SC 367 Hans Muller of Nurenburg Vs.Superintendent, Presidency Jail, Calcutta & Ors.

“19. We do not agree and will first examine the positionwhere an order of expulsion is made before any steps toenforce it are taken. The right to expel is conferred bySection 3(2)(c) of the Foreigners Act, 1946 on the CentralGovernment and the right to enforce an order of expulsionand also to prevent any breach of it, and the right to usesuch force as may be reasonably necessary “for theeffective exercise of such power” is conferred by Section11(1), also on the Central Government. There is, therefore,implicit in the right of expulsion number of ancillary rights,among them, the right to prevent any breach of the orderand the right to use force and to take effective measures tocarry out those purposes. Now the most effective methodof preventing breach of the order and ensuring that it isduly obeyed is by arresting and detaining the person orderedto be expelled until proper arrangements for the expulsioncan be made. Therefore, the right to make arrangementsfor an expulsion includes the right to make arrangements

for preventing any evasion or breach of the order, and thePreventive Detention Act confers the power to use themeans of preventive detention as one of the methods ofachieving this end. How far it is necessary to take this stepin given case is matter that must be left to the discretionof the Government concerned, but, in any event, whencriminal charges for offences said to have been committedin this country and abroad are levelled against person, anapprehension that he is likely to disappear and evade anorder of expulsion cannot be called either unfounded orunreasonable. Detention in such circumstances is rightlytermed preventive and falls within the ambit of thePreventive Detention Act and is reasonably related to thepurpose of the Act.

35.The Foreigners Act confers the power to expel foreignersfrom India. It vests the Central Government with absoluteand unfettered discretion and, as there is no provisionfettering this discretion in the Constitution, an unrestrictedright to expel remains.

42.Our conclusion is that the Foreigners Act is not governedby the provisions of the Extradition Act. The two are distinctand neither impinges on the other. Even if there is arequisition and good case for extradition, Government isnot bound to accede to the request. It is given an unfetteredright to refuse. Section 3(1) of the Extradition Act says—”the Central Government may, if it thinks fit”.

Therefore, if it chooses not to comply with the request, theperson against whom the request is made cannot insist thatit should. The right is not his; and the fact that request hasbeen made does not fetter the discretion of Government tochoose the less cumbrous procedure of the Foreigners Actwhen foreigner is concerned, provided always, that inthat event the person concerned leaves India free man.If no choice had been left to the Government, the positionwould have been different but as Government is given theright to choose, no question of want of good faith can arisemerely because it exercises the right of choice which thelaw confers. This line of attack on the good faith ofGovernment falls to the ground.”

33. In order to contend that the classification made is valid, thelearned Additional Solicitor General has referred to the decision in;

(i)AIR 1952 SC 75 State of W.B. Vs. Anwar Ali Sarkar ashereunder:

“63. In order to appreciate this contention, it is necessaryto state shortly the scope of Article 14 of the Constitution.It is designed to prevent any person or class of personsfrom being singled out as special subject for discriminatoryand hostile legislation. Democracy implies respect for theelementary rights of man, however suspect or unworthy.Equality of right is principle of republicanism and Article14 enunciates this equality principle in the administration ofjustice. In its application to legal proceedings the Articleassures to everyone the same rules of evidence and modesof procedure. In other words, the same rule must exist forall in similar circumstances. This principle, however, doesnot mean that every law must have universal applicationfor all persons who are not by nature, attainment orcircumstance, in the same position.

64. By the process of classification the State has the powerof determining who should be regarded as class forpurposes of legislation and in relation to law enacted on aparticular subject. This power, no doubt, in some degree islikely to produce some inequality; but if law deals withthe liberties of number of well-defined classes, it is notopen to the charge of denial of equal protection on the groundthat it has no application to other persons. The classificationpermissible, however, must be based on some real andsubstantial distinction bearing just and reasonable relationto the objects sought to be attained and cannot be madearbitrarily and without any substantial basis. Classificationthus means segregation in classes which have systematicrelation, usually found in common properties andcharacteristics. It postulates rational basis and does notmean herding together of certain persons and classesarbitrarily. Thus the legislature may fix the age at which

persons shall be deemed competent to contract betweenthemselves, but no one will claim that competency tocontract can be made to depend upon the stature or colourof the hair. “Such classification for such purpose wouldbe arbitrary and piece of legislative despotism”.

(ii)(1955) 1 SCR 1045 Budhan Choudhary Vs. State of Bihar

“5. The provisions of Article 14 of the Constitution havecome up for discussion before this Court in number ofcases, namely, Chiranjit Lal Chowdhuri v. Union of India[(1950) 1 SCR 869] , State of Bombay v. F.N. Balsara[(1951) 2 SCR 682] , State of West Bengal v. Anwar AliSarkar [(1952) 3 SCR 284] , Kathi Raning Rawat v. Stateof Saurashtra [(1952) 3 SCR 435] , LachmandasKewalram Ahuja v. State of Bombay [(1952) 3 SCR 710]and Qasim Razvi v. State of Hyderabad [AIR 1953 SC156 : (1953) 4 SCR 581] and Habeeb Mohamad v. Stateof Hyderabad [(1953) 4 SCR 661] . It is, therefore, notnecessary to enter upon any lengthy discussion as to themeaning, scope and effect of the article in question. It isnow well established that while Article 14 forbids classlegislation, it does not forbid reasonable classification forthe purposes of legislation. In order, however, to pass thetest of permissible classification two conditions must befulfilled, namely, (i) that the classification must be foundedon an intelligible differentia which distinguishes persons orthings that are grouped together from others left out of thegroup and (ii) that differentia must have rational relationto the object sought to be achieved by the statute in question.The classification may be founded on different bases;namely, geographical, or according to objects or occupationsor the like. What is necessary is that there must be nexusbetween the basis of classification and the object of theAct under consideration. It is also well established by thedecisions of this Court that Article 14 condemnsdiscrimination not only by substantive law but also by alaw of procedure. The contention now put forward as tothe invalidity of the trial of the appellants has, therefore tobe tested in the light of the principles so laid down in thedecisions of this Court.

(iii)(1976) 2 SCC 310 State of Kerala Vs. N.M. Thomas

“31. The rule of parity is the equal treatment of equals inequal circumstances. The rule of differentiation is enactinglaws differentiating between different persons or things indifferent circumstances. The circumstances which governone set of persons or objects may not necessarily be thesame as those governing another set of persons or objectsso that the question of unequal treatment does not reallyarise between persons governed by different conditions anddifferent sets of circumstances. The principle of equalitydoes not mean that every law must have universal applicationfor all persons who are not by nature, attainment orcircumstances in the same position and the varying needsof different classes of persons require special treatment.The legislature understands and appreciates the need of itsown people, that its laws are directed to problems mademanifest by experience and that its discriminations are basedupon adequate grounds. The rule of classification is not anatural and logical corollary of the rule of equality, but therule of differentiation is inherent in the concept of equality.Equality means parity of treatment under parity ofconditions. Equality does not connote absolute equality. Aclassification in order to be constitutional must rest upondistinctions that are substantial and not merely illusory. Thetest is whether it has reasonable basis free from artificialityand arbitrariness embracing all and omitting none naturallyfalling into that category.”34. The learned Additional Solicitor General has also referred tothe decision in (2001) 2 SCC 259 K. Thimmappa Vs. Chairman, CentralBoard of Directors to contend that when law is challenged to bediscriminatory essentially on the ground that it denies equal treatment orprotection, the question for determination by the Court is not whether ithas resulted in inequality but whether there is some differentia whichbears just and reasonable relation to the object of Legislation. Meredifferentiation does not per se amount to discrimination within theinhibition of the equal protection clause.

35. Having noted the above, at the outset, insofar as the decisionrelied on by the learned senior counsel for the petitioner in the case of

ABC

ANavtej Singh Johar & Ors. (supra), though the Doctrine of ProgressiveRealisation of Rights is referred and has been stated that there mustnot be any regression of rights and in progressive and an ever-improvingsociety there is no place for retreat, the society has to march ahead thatthe state should not take measures or steps that deliberately lead toretrogression on the enjoyment of rights either under the constitution orBotherwise, we are of the opinion that the said observation would dependon the nature of the rights regarding which consideration is made inappropriate cases. In the instant facts, the said observation cannot be ofany assistance to the petitioners since the right though had been conferredearlier, such rights, insofar as the petitioners are concerned only aCstatutory right as they are admittedly not citizens of this country. Thoughcertain rights under the statute were given, the state has duty to balancethe interests of its citizens and the non-citizens when change is requiredto be made. However as to whether such consideration has been madein just and proper manner with reference to all aspects is anotheraspect which we will advert to in the course of this judgment, but toDcontend that it amounts to retrogression may not arise in the presentcontext.

36. Insofar as the remaining decisions relied on by the petitionersas also the learned Additional Solicitor General, cumulative perusal ofthe same would indicate that though this court has asserted with regardEto the legitimate expectation, right not to be discriminated keeping inview Article 14 of the Constitution etc., they are all essentially in thecontext while dealing with the rights of citizen against the State or in asituation where dispute was between citizen against another citizenof this country and in that regard when the constitutional principles wereFinvoked. Further, the decisions relied on by the learned Additional SolicitorGeneral would indicate that this Court while considering the right claimedby foreigner or who is not citizen of this country has dealt with thematter differently and declined to interfere and grant any relief. If in thatlight, the matter is looked into, when there is no dispute to the fact that

the petitioners answer the definition of “foreigners” as defined underGthe Foreigners Act, the said decisions relied upon by the learned seniorcounsel for the petitioner would not apply on all fours. But keeping inview the nature of right claimed by the petitioners as OCI Cardholderswhich is status accorded despite being foreigners and the backgroundcircumstance which led to the situation the spirit of the principles laidHwill have to be borne in mind while making further consideration since

the principles laid down therein disapproving non-application of mind,arbitrariness etc. will hold good in the present circumstance as well. Inthe instant facts the statutory as OCI Cardholder subsists and it is in thatlight the validity of notification is to be tested which certainly can beraised by the petitioner and be addressed by this Court.

37. Therefore, with the said understanding on the aspect of theapplicability of the said decisions concluded as above, in the facts andcircumstances arising in the instant case and the issue which is to betaken note and answered by us, the matter requires further consideration.No doubt, as pointed out by the learned Additional Solicitor General,Section 2(a) of the Foreigners Act, 1946 defines ‘foreigner’ to mean aperson who is not citizen of India. If the matter had rested at that,there was no difficulty. In the instant case, there is different dimensionwhich arises for consideration. The circumstance in which the petitionershave come to be classified as ‘foreigners’ and the right which wasconferred on them is to be kept in view.

38. To put the matter in perspective and understand the conceptbased on which the rights are being claimed by the petitioners, it isnecessary to advert to the fact situation and the law governing themdespite being classified as ‘foreigner’. Most of the petitioners are allpersons who are either of full age or are yet to reach the full age but areall children, whose both parents or one of them are Indian citizens. Inthe changing world and in an era where the concept of multinationalsproviding employment to Indian citizens had increased, the incident ofbirth of the children taking place in country outside India had alsoincreased. In that circumstance, successive governments had to bestowtheir attention to this aspect of the matter to provide better rights to suchpersons, who, though in the technical sense where ‘foreigners’, not beingcitizens of this country, yet had ‘connect’ with this country. Thesewere cases where though the umbilical cord with the biological motherhad snapped in foreign country, the umbilical connections with thecountry continue to remain intact as the entire family including thegrandparents would be in India and the parents were Indian citizens inmost cases. In that view, having considered all these aspects of thematter, despite such persons not having the benefit of citizenship asprovided under Part II of the Constitution through Articles 5 to 8 thereofand there being no scope for dual citizenship, certain rights were created

Aunder Act, 1955 which had come into force based on the provision inArticle 11 of the Constitution of India.

39. In that regard, in concept where the ‘dual citizenship’ wasnot recognised, such persons as like that of the petitioners were consideredas Overseas Citizens of India card holders as defined under SectionB2(ee) of Act, 1955. The Act, 1955 through the amendment Act 6 of 2004brought certain rights and through substitution of Section 7A to 7D themanner of registration of Overseas Citizen of India card holder;renunciation of citizenship and cancellation of registration were providedfor. In the cases, on hand, the fact that all the petitioners are registeredCas Overseas Citizens of India cardholders is not in dispute. The right towhich they are making claim is conferred under Section 7B(1) to Act,1955 which has been extracted and noted above. The right to educationwhich was conferred under the notification dated 11.04.2005, in paritywith the Non-Resident Indians is due to the fact that the Non-ResidentIndians which is separate class, had such right similar to that of theDIndian citizens in matters relating to education. It is based on such rightbeing conferred as far back as in the year 2005, the OCI Cardholderswere taking part in the process of selections conducted for undertakingeducational courses in India. Such benefit was extended to appear forthe All India Pre-Medical Test or such other tests to make them eligibleEfor admission in pursuance of the provisions contained in the relevantacts, through the notification dated 05.01.2009. The said benefit is beingenjoyed by all the OCI Cardholders in the same manner as the Non-Resident Indians were enjoying along with the Indian citizens. In thatcircumstance, most of such OCI Cardholders have been pursuing theirentire educational career in India.F

40. In the said background it is necessary to note that as per theinformation furnished relating to the status of the petitioners in W.P.(C)No.891 of 2021 which is taken as an instance for demonstrating thesituation of their affinity with India and the number of years they havebeen in India. The details are as provided in Annexure P/2 which is asGhereunder: -

ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA &ORS.

ABCDEFGH

290SUPREME COURT REPORTS[2023] 5 S.C.R.ABCDEFGH

41. The above extracted details would indicate that in all the casesthe petitioners have studied for more than six years in India and in mostof the cases, almost the entire educational career up to the stage of thequalifying examination for the Pre-Medical Test has been undertaken inIndia. Apart from the specific cases noted herein, there are alsopetitioners/persons who had become citizens of foreign country forcompelling reasons, but hold benefit of OCI card. This would demonstratethat though in terms of law, the petitioners were ‘foreigners’ due to theincident of birth in foreign country or such other compellingcircumstances, they continue to remain in India and to pursue theireducation and had fully justified the mid-path benefit given to them basedon the OCI card. The manner in which they have conducted themselvesby being students in India would indicate that in addition to having theumbilical connection with the country, they being aware of the rightconferred through the notifications dated 11.04.2005 and 05.01.2009 hadpositioned themselves to further their professional career by making achoice of their profession and undertaking the preparation for the same.This was based on what was held out to that class of Overseas Citizens.In fact, their entire educational career has been of the same standard,with the same ‘advantages’ and ‘disadvantages’ as has been the casewith the students who are Indian citizens. In such situation, though in thestrict term of the word ‘legitimate expectation’, it may not fall, statutoryright conferred had sown the seed of hope recognising the affiliation tothis country, though they were not citizens in the strict sense.42. Hence keeping this situation in the backdrop, the manner inwhich the impugned notification would affect the petitioners and thesimilarly placed citizens will have to be taken note to examine whetherthe withdrawal of the conferred right will be justified. It is no doubt trueas contended by the learned Additional Solicitor General, the rightavailable to the OCI Cardholders is only the statutory right based on theright that is conferred through notification in terms of Section 7B(1) ofAct, 1955. Sub-section (2) thereto specifically indicates the right thatcannot be conferred even under sub-section (1) through notification.Though notification issued under the sub-delegated power can bewithdrawn, modified or altered, the effect of the impugned notificationdated 04.03.2021 needs to be noted to consider as to whether the sameis wholly justified or as to whether any portion of it falls foul of theobject for which it is made and the manner in which it has been modified.

A43. To the extent as noticed, the right being conferred under Section7B(1) of Act 1955 through the impugned notification dated 04.03.2021 ifit was for the first time conferring such right, the petitioners could nothave made any grievance. In fact, perusal of the notification at firstblush gives an impression that merely the earlier notifications dated11.04.2005, 05.01.2007 and 05.01.2009 have been consolidated toBcrystallize all the rights to be provided under one notification. However,a closer perusal of the said notification which has been extracted abovein the course of this judgment would indicate that clause 4(ii) of thenotification though provides the right to appear for the All India EntranceTest, which was hitherto available to make them eligible for admission inCparity with Non-Resident Indians has now restricted the eligibility foradmission only against the seats which are reserved for Non-ResidentIndians. In situation where there is certain marked economic differencebetween OCI Cardholders and Non-Resident Indians to acquire suchseats, the OCI Cardholders claim to be at disadvantage and the rightwhich was available to them earlier has stood altered to their detriment.DEven if that be so, if the said right which is conferred in modification ofthe right which had been bestowed earlier was made with prospectiveeffect, certainly the petitioners and the similarly placed persons basedon the contentions which are at present urged herein could not havebeen heard to complain in proceeding of this nature and would haveEbeen matter to be considered by the executive based on the claim ofthe Indian diaspora.

44. However, what is necessary to be taken note is that the rightwhich was bestowed through the notification dated 11.04.2005 and05.01.2009 insofar as the educational parity, including in the matter ofFappearing for the All India Pre-Medical Test or such other tests to makethem eligible for admission has been completely altered. Though thenotification ex facie may not specify retrospective application, the effectof superseding the earlier notifications and the proviso introduced toclause 4(ii) would make the impugned notification dated 04.03.2021‘retroactive’ insofar as taking away the assured right based on whichGthe petitioners and similarly placed persons have altered their positionand have adjusted the life’s trajectory with the hope of furthering theircareer in professional education.

45. The learned senior counsel for the petitioners would in thatcontext contend that since sub-section (2) to Section 7B of Act, 1955Hdoes not exclude the right under Article 14 of the Constitution, it is

available to be invoked and such discrimination contemplated in thenotification to exclude the OCI Cardholders should be struck down. Article14 of the Constitution can be invoked and contend discrimination onlywhen persons similarly placed are treated differently and in that viewthe OCI Cardholders being class by themselves cannot claim paritywith the Indian citizens, except for making an attempt to save the limitedstatutory right bestowed. To that extent certainly the fairness in theprocedure adopted has nexus with the object for which change ismade and the application of mind by the Respondent No.1, before issuingthe impugned notification requires examination.

46. As noted, the right of the OCI Cardholders is mid-way rightin the absence of dual citizenship. When statutory right was conferredand such right is being withdrawn through notification, the process forwithdrawal is required to demonstrate that the action taken is reasonableand has nexus to the purpose. It should not be arbitrary, without basisand exercise of such power cannot be exercised unmindful ofconsequences merely because it is sovereign power. To examine thisaspect, in addition to the contentions urged by the learned AdditionalSolicitor General we have also taken note of the objection statementfiled with the writ petition. Though detailed contentions are urged withregard to the status of citizen and the sovereign power of the State, asalready noted, in these petitions the sovereign power has not beenquestioned but the manner in which it is exercised in the presentcircumstance is objected. The contention of learned Additional SolicitorGeneral is that the intention from the beginning was to grant parity toOCI Cardholders only with NRIs. On that aspect as already noted abovewe have seen the nature of the benefit that had been extended to thepetitioners and the similarly placed petitioners under the notifications ofthe year 2005, 2007 and 2009. The further contention insofar as equatingthe OCI Cardholders to compete only for the seats which are reservedfor NRIs and to exclude the OCI Cardholders for admission against anyseat reserved exclusively for the Indian citizens, across the board, evento the persons who were bestowed the right earlier, it is stated that therationale is to protect the rights of the Indian citizens in such matterswhere State may give preference to its citizens vis-à-vis foreigners holdingOCI Cards. It is further averred in the counter that number of seatsavailable for medical and engineering courses in India are very limitedand that it does not fully cater to the requirement of even the Indiancitizens. It is therefore contended that the right to admission to such

Aseats should primarily be available to the Indian citizens instead offoreigners, including OCI Cardholders.

47. Except for the bare statement in the objection statement, thereis no material with regard to the actual exercise undertaken to arrive ata conclusion that the participation of OCI Cardholders in the selectionBprocess has denied the opportunity of professional education to the Indiancitizens. There are no details made available about the considerationmade as to, over the years how many OCI cardholders have succeededin getting seat after competing in the selection process by which therewas denial of seats to Indian Citizens though they were similar merit-wise. Per contra, the learned senior counsel for the petitioners has placedCreliance on the statement made by the Hon’ble Minister in reply to thequestion raised in the Rajya Sabha as recent as on 13.12.2022, and anextract to indicate the details is produced along with I.A. No.4763 of2023 for additional documents in W.P.(C) No.246 of 2022. The detailsshown are as follows:-D“STATEMENT REFERRED TO IN REPLY TO RAJYASABHA STARRED QUESTION NO.64* FOR 13[TH]DECEMBER, 2022

(a) to (c) As per information received from National TestingAgency (NTA), the details of number of students who appearedfor the NEET-UG examination in the last three years are as under:-

The details of number of Undergraduate (UG)/Postgraduate (PG)seats available during the admission process of last three yearsare as under:-

According to National Medical Commission (NMC), thenumber of MBBS & PG seats vacant from 2018-19 to 2021-22, year wise is as under:-

(Emphasis Supplied)

48. Hence, it is sought to be pointed out on behalf of the petitionersthat the explanation put forth does not indicate the true State of Affairsin as much as, seats have still remained vacant in the previous years. Itis no doubt true that as contended by the learned Additional SolicitorGeneral, the vacancies will remain due to several factors such asreservation of seats, other permutations and combinations as also thepreferred and non-preferred colleges. Be that as it may, the dire need totake away the bestowed right by applying the impugned notification evento young students who technically though are not citizens of this countrybut were provided certain rights in such manner would not be justified asit does not demonstrate nexus to the object sought to be achieved. Policydecision for the future, certainly is within the domain of RespondentNo.1 based on the sovereign powers of the State. Even on that aspectall that has been stated is that the decision to issue the notification wastaken in the meeting of Secretaries held on 19.07.2018 without indicatingthe nature of deliberations. Therefore, in that perspective, keeping inview the present position, the decision to supersede the earlier notificationsand take away the right of OCI Cardholders in whose favour such righthad accrued and they have acted in manner to take benefit of suchright should not have been nullified without reference to theconsequences. Having undertaken the entire educational career in Indiaor at least the High School onwards, they cannot at this stage turn back

Ato the country in which they were born to secure the professional educationas they would not be in position to compete with the students thereeither, keeping in view the study pattern and the monetary implication.

49. To put the matter in its context for better appreciation of themischief caused by the impugned notification and the manner in which itBwould irreversibly alter the situation, to which aspect there is non-application of mind by respondent No.1, it would be appropriate to referto the existing facts of an individual petitioner. To demonstrate this aspectwe shall take the details of the first petitioner in W.P.(C) No.891 of 2021as an instance to demonstrate the case in point. From the tabular statementsupra, it is noted,C

(a)She was born on 31.12.2003 in California, USA.

(b)Both her parents are Indian Nationals.

(c)She has come to India in the year 2006

D(d)Has lived thereafter in India for 15 years.”

(e)Presently she is at Pune, Maharashtra,

(f)pursued her entire educational career in India

(g)Passed the 12th standard which is the qualifying examinationto appear for the Medical Entrance also in India.E

As on the year of birth in 2003 the Citizenship Amendment Act,2003 was brought in to introduce Section 7A of Act, 1955 w.e.f.06.12.2004. The said amendment was based on the recommendationsof High-Level Committee on Indian diaspora. The Government ofIndia decided to register the Persons of Indian Origin (PIO) of certainFcategory as specified in Section 7A of Act, 1955 as Overseas Citizensof India. The OCI scheme was introduced with the issue of notificationof 2005 which is in the background of the demands for dual citizenshipby the Indian diaspora and the concept of dual citizenship is not recognized.50. Therefore it is evident that the object of providing the right inGthe year 2005 for issue of OCI cards was in response to the demand fordual citizenship and as such, as an alternative to dual citizenship whichwas not recognised, the OCI card benefit was extended. If in that light,the details of the first petitioner taken note hereinabove is analysed inthat context, though the option of getting the petitioner No.1 registeredHas citizen under Section 4 of Act, 1955 by seeking citizenship by descent

soon after her birth or even by registration of the citizenship as providedunder Section 5 of Act, 1955, was available in the instant facts to herparents, when immediately after the birth of petitioner No.1 the provisionfor issue of OCI cards was statutorily recognised and under the notificationthe right to education was also provided, the need for parents of petitionerNo.1 to make choice to acquire the citizenship by descent or to renouncethe citizenship of the foreign country and seek registration of theCitizenship of India did not arise to be made, since as an alternative todual citizenship the benefit had been granted and was available topetitioner No.1 and the entire future was planned on that basis and thatsituation continued till the year 2021.

51. Further, as on the year 2021 when the impugned notificationwas issued the petitioner No.1 was just about 18 years i.e., full age andeven if at that stage, the petitioner was to renounce and seek forcitizenship of India as provided under Section 5(1)(f)(g), the duration forsuch process would disentitle her the benefit of the entire educationcourse from pre-school stage pursued by her in India and the benefit forappearing for the Pre-Medical Test which was available to her will beerased in one stroke. Neither would she get any special benefit in thecountry where she was born. Therefore in that circumstance when therewas an assurance from sovereign State to persons like that of thepetitioner No.1 in view of the right provided through the notificationissued under Section 7B(1) of Act, 1955 and all ‘things were done’ bysuch Overseas Citizens of India to take benefit of it and when it was thestage of maturing into the benefit of competing for the seat, all ‘suchthings done’ should not have been undone and nullified with the issue ofthe impugned notification by superseding the earlier notifications so asto take away even the benefit that was held out to them.

52. Therefore, on the face of it the impugned notification not savingsuch accrued rights would indicate non application of mind andarbitrariness in the action. Further in such circumstance when the statedobject was to make available more seats for the Indian Citizens and it isdemonstrated that seats have remained vacant, the object for whichsuch notification was issued even without saving the rights and excludingthe petitioners and similarly placed OCI Cardholders with the otherstudents is to be classified as one without nexus to the object. As takennote earlier during the course this order, the right which was granted tothe OCI cardholders in parity with the NRIs was to appear for the Pre-

AMedical Entrance Test along with all other similar candidates i.e. theIndian citizens. In situation where it has been demonstrated that thepetitioner No.1 being born in the year 2003, has been residing in Indiasince 2006 and has received her education in India, such student whohas pursued her education by having the same ‘advantages’ and‘disadvantages’ like that of any other students who is citizen of India,Bthe participation in the Pre-Medical Entrance Test or such other EntranceExamination would be on an even keel and there is no greater advantageto the petitioner No.1 merely because she was born in California, USA.Therefore, the right which had been conferred and existed had notaffected Indian citizens so as to abruptly deny all such rights. The rightCwas only to compete. It could have been regulated for the future, if it isthe policy of the Sovereign State. No thought having gone into all theseaspects is crystal clear from the manner in which it has been done.

53. In the above circumstance, keeping in view, the object withwhich the Act, 1955 was amended so as to provide the benefit to OverseasDCitizen of India and in that context when rights were given to the OCIcardholders through the notifications issued from time to time, based onwhich the OCI cardholders had adopted to the same and had done thingsso as to position themselves for the future, the right which had accruedin such process could not have been taken away in the present manner,which would act as ‘retroactive’ notification. Therefore, though theEnotification ex-facie does not specify retrospective operation, since itretroactively destroys the rights which were available, it is to be ensuredthat such of those beneficiaries of the right should not be affected bysuch notification. Though the rule against retrospective construction isnot applicable to statutes merely because part of the requisite for itsFaction is drawn from time antecedent to its passing, in the instant casethe rights were conferred under the notification and such rights are beingaffected by subsequent notification, which is detrimental and the sameshould be avoided to that extent and be allowed to operate without suchretroactivity.G54. We note that it is not retrospective inasmuch as it does notaffect the OCI Cardholders who have participated in the selection process,have secured seat and are either undergoing or completed the MBBScourse or such other professional course. However, it will act asretroactive action to deny the right to persons who had such right whichis not sustainable to that extent. The goal post is shifted when the gameH

is about to be over. Hence we are of the view that the retroactive operationresulting in retrospective consequences should be set aside and suchadverse consequences is to be avoided.

55. Therefore in the factual background of the issue involved, tosum up, it will have to be held that though the impugned notificationdated 04.03.2021 is based on policy and in the exercise of the statutorypower of Sovereign State, the provisions as contained therein shallapply prospectively only to persons who are born in foreign countrysubsequent to 04.03.2021 i.e. the date of the notification and who seekfor registration as OCI cardholder from that date since at that juncturethe parents would have choice to either seek for citizenship by descentor to continue as foreigner in the background of the subsisting policy ofthe Sovereign State.56. In light of the above, it is held that the respondent No.1 infurtherance of the policy of the Sovereign State has the power to passappropriate notifications as contemplated under Section 7B(1) of theCitizenship Act, 1955, to confer or alter the rights as provided for therein.However, when conferred right is withdrawn, modified or altered, theprocess leading thereto should demonstrate application of mind, nexusto the object of such withdrawal or modification and any such decisionshould be free of arbitrariness. In that background, the impugnednotification dated 04.03.2021 though competent under Section 7B(1) ofAct, 1955 suffers from the vice of non-application of mind and despitebeing prospective, is in fact ‘retroactive’ taking away the rights whichwere conferred also as matter of policy of the Sovereign State.

57. Hence, the notification being sustainable prospectively, wehereby declare that the impugned portion of the notification which providesfor supersession of the notifications dated 11.04.2005, 05.01.2007 and05.01.2009 and the clause 4(ii), its proviso and Explanation (1) theretoshall operate prospectively in respect of OCI cardholders who havesecured the same subsequent to 04.03.2021.

58. We further hold that the petitioners in all these cases and allother similarly placed OCI cardholders will be entitled to the rights andprivileges which had been conferred on them earlier to the notificationdated 04.03.2021 and could be availed by them notwithstanding theexclusion carved out in the notification dated 04.03.2021. The participationof the petitioners and similarly placed OCI cardholders in the selection

Aprocess and the subsequent action based on the interim orders passedherein or elsewhere shall stand regularised.

59. Notwithstanding the fact that we have held the impugnednotification dated 04.03.2021 to be valid with specific prospective effectin view of the power available to respondent No.1 under Section 7B(1)Bof Act, 1955, keeping in perspective the wide ramification it may have infuture also on the Indian diaspora and since it is claimed to be based on

the policy decision of the Sovereign State, we expect that the samewould be examined in the higher echelons of the Executive with referenceto the rights already created.

C60. In terms of the above, all these petitions/ appeals are allowedin part to the above extent with no order as to costs.

61. Pending application, if any, stands disposed of.

Divya Pandey

D(Assisted by : Roopanshi Virang, LCRA)

Petitions/appeals partly allowed.