NEW DELHI: The Supreme Court on Friday held that the Union government's March 4, 2021 notification declaring that the Overseas Citizens of India could not complete for seats reserved for Indian citizens in medical courses here would be applied with prospective effect only.
The top court set aside retroactive operation of the decision resulting in retrospective consequences.
"The notification suffers from the vice of non-application of mind and despite being prospective, is in fact retroactive taking away the rights which were conferred also as a matter of policy of the Sovereign State," a bench of Justices A S Bopanna and C T Ravikumar said.
The court's judgement came on a batch of writ petitions filed by OCI candidates.
The bench declared the petitioners in all these cases and all other similarly placed OCI cardholders will be entitled to the rights and privileges which had been conferred on them prior to the notification and could be availed by them.
The court said though the notification is based on a policy and in the exercise of the statutory power of a Sovereign State, it would apply prospectively only to persons who are born in a foreign country subsequent to March 04, 2021.
Anushka Rengunthwar and others contended that by the notification, the existing right of appearing for the entrance exams to compete with Indian Citizens for the seat in NEET PG and Super Speciality courses was taken away. They were restricted for the admission only against the seats reserved for the Non-Resident Indians or for supernumerary seats.
The government, on the contrary, claimed that the OCI cardholders were not be eligible for admission against any seat reserved exclusively for Indian Citizens as the OCI Cardholder is a foreign national holding passport from a foreign country and is not a citizen of India.
The court, however, said, "the government, in furtherance of the policy of the Sovereign State has the power to pass appropriate notifications as contemplated under Section 7B(1) of the Citizenship Act, 1955, to confer or alter the rights as provided for therein. However, when a conferred right is withdrawn, modified or altered, the process should demonstrate application of mind, nexus to the object of such withdrawal or modification and any such decision should be free of arbitrariness."
The bench said that the notification is not retrospective inasmuch as it does not affect the OCI Cardholders who have participated in the selection process, have secured a seat and are either undergoing or completed the MBBS course or such other professional course.
"However, it will act as retroactive action to deny the right to persons who had such right which is not sustainable to that extent. The goal post is shifted when the game is about to be over. Hence we are of the view that the retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided," the bench said.
The decision to supersede the earlier notifications and take away the right of OCI Cardholders in whose favour such right had accrued and they have acted in a manner to take benefit of such rigjts should not have been nullified without reference to the consequences, the bench added.
The court further said it expected that the matter would be examined in the higher echelons of the Executive with reference to the rights already created, notwithstanding the fact that the notification was held to be valid with specific prospective effect, keeping in perspective the wide ramification it may have in future also on the Indian diaspora and since it is claimed to be based on the policy decision of the Sovereign State.
