Karnataka High Court
Ishi Singhal vs The Union Of India on 10 October, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2023:KHC:36962
WP No. 19971 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 19971 OF 2021 (EDN-RES)
BETWEEN:
ARUSHI BANSAL
D/O.PIYUSH BANSAL
AGED ABOUT 18 YEARS
E 102, PURVA FOUNTAIN SQUARE
MARATHAHALLI
BENGALURU - 560 037
...PETITIONER
(BY SRI AJOY KUMAR PATIL, ADVOCATE)
AND:
1. THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY
TO GOVERNMENT OF INDIA
MINISTRY OF HOME AFFAIRS
NORTH BLOCK
NEW DELHI - 110 001
Digitally
signed by B 2. THE UNION OF INDIA
LAVANYA REPRESENTED BY ITS SECRETARY
Location: TO GOVERNMENT OF INDIA
HIGH DEPARTMENT OF HIGHER EDUCATION
COURT OF
MINISTRY OF EDUCATION
KARNATAKA
SHASTRI BHAVAN
DR.RAJENDRA PRASAD ROAD
NEW DELHI - 110 001
3. NATIONAL TESTING AGENCY
BLOCK-C, IITK OUTREACH CENTRE
20 1A/8, SECTOR 62
NOIDA, UTTAR PRADESH - 201 309
REPRESENTED BY ITS DIRECTOR (ADMIN.)
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NC: 2023:KHC:36962
WP No. 19971 of 2021
4. JOINT SEAT ALLOCATION AUTHORITY (JoSAA)
INDIAN INSTITUTE OF TECHNOLOGY (IIT)
KHARAGUPUR
KHARAGUPUR - 721 302
REPRESENTED BY ITS
CHAIRMAN/DIRECTOR/DEAN
... RESPONDENTS
(BY SRI SHIVAKUMAR, CGC)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION ISSUED BY RESPONDENT NO.1-UNION OF
INDIA, MINISTRY OF HOME AFFAIRS AT ANENXURE-A IN
S.O.NO.1050(E) DATED 04.03.2021 AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed seeking to quash the notification issued by respondent No.1-Union of India, Ministry of Home Affairs in S.O.1050(E) dated 04.03.2021.
2. It is the case of the petitioner that she is a student and by virtue of the amendments to the Citizenship Act, 1955 (for short, 'the Act'), she is registered as Overseas Citizen of India (for short, 'the OCI') cardholder and hence, she is seeking to be treated on par with Indian citizens for all practical purposes except for a few limited purposes. It is stated that since the petitioner is registered as the OCI cardholder under the Act, she has the same rights and is entitled to all the benefits as -3- NC: 2023:KHC:36962 WP No. 19971 of 2021 Indian citizens except those denied to her by Section 7B of the Act.
3. It is contended by Sri Ajoy Kumar Patil, learned counsel for petitioner that by virtue of the amendments to the Act, the OCI cardholders have been practically treated on par with Indian citizens except for a few limited purposes specified therein. He further contends that the denial of opportunity to the petitioner to participate in the online counseling for admission to all the seats offered and select seats in Indian Institutes of Technology (for short, IITs.), National Institutes of Technology (for short, NITs.), Indian Institutes of Information Technology (for short, IIITs) and other Government Funded Technical Institutes (for short, GFTs.), are illegal and arbitrary. Hence, he contends that the impugned notification issued by respondent No.1 is contrary, ultra vires and repugnant to Sections 7A, 7B, 7C and 7D of the Parent Citizenship Act, 1955.
3.1 The petitioner is seeking admission to IITs., NITs., IIITs. and GFTIs. on the basis of merit and ranking in JEE (Main), 2021 and JEE (Advanced) 2021 conducted by -4- NC: 2023:KHC:36962 WP No. 19971 of 2021 respondent No.3-National Testing Agency (for short, 'NTA'), which is an agency of respondent No.2.
3.2 As stated earlier, the petitioner is questioning the validity of the notification issued by the Central Government, the Ministry of Home Affairs dated 04.03.2021 to be illegal, arbitrary, discriminatory and violative of Article 14 of the Constitution of India, contrary and ultra vires of the Act. It is further contended that the petitioner is also seeking to override and nullify the judgment of the Division Bench of this Court in WA.No.1177/2019 dated 09.12.2020.
3.3 The petitioner is aggrieved by Clause-4(ii) of the said impugned notification which makes the OCI cardholders eligible for admission only against Non-Resident Indian (for short, 'NRI') seats and proviso to Clause-4(ii) which states that -
"Provided that the OCI cardholder shall not eligible for admission against any seat reserved exclusively for Indian citizens".
3.4 The petitioner, who is a OCI cardholder, has been registered under Section 7A of the Act. The petitioner has been studying in India for the past several years and has passed -5- NC: 2023:KHC:36962 WP No. 19971 of 2021 Class X and XII standard examinations from Bengaluru. The petitioner registered herself online and appeared in all the sessions of JEE (Main) 2021 examinations conducted in February, March, July and August, 2021. The petitioner is qualified for JEE (Advanced) 2021, thereby qualified for admission to IITs, NITs, IIITs and GFTIs. This being the state of affairs, the Government of India through Ministry of Home Affairs issued a Gazette notification dated 11.04.2005 conferring certain rights on the OCI cardholders. Thereafter, another notification came to be issued permitting the petitioner and similarly placed students, who are the OCI cardholders to be entitled to appear for All India Pre-Medical Test or such other tests to make them eligible for admission in pursuance of the provisions contained in the relevant Acts. The notification issued at Annexure-A has been superseded by two other notifications at Annexures-H and J.
3.5 Learned counsel for petitioner contends that all these years upto the academic year 2020-2021, the respondents have been allowing and permitted the OCI cardholders to appear for JEE (Main) and JEE (Advanced) and participate in the counseling conducted by the Joint Seat Allocation Authority -6- NC: 2023:KHC:36962 WP No. 19971 of 2021 (for short, 'JoSAA') for admission to IITs, NITs, IIITs and GFTIs. according to their merit and ranking in JEE (Main) and/or JEE (Advanced) by treating them as Indian citizens.
3.6 Learned counsel for petitioner contends that the notification issued by respondent No.1 is illegal, unconstitutional and violative of Article 14 of the Constitution of India. The said notification is also ultra vires of Section 4 of the Act, since the said Section treats and declares children born to Indian citizens abroad as Indian citizens by descent and they are entitled to all rights as Indian citizens. Accordingly, he contends that the said impugned notification is contrary and ultra vires of the Act. It is also contended by learned counsel that the statutory notification issued under the Act cannot nullify the provisions of the Act and must be in consonance with the Parent Act, under which, the said notification has been issued. Whereas, the impugned notification issued herein in this case purporting to exercise the power conferred by Section 7B of the Act is clearly contrary and ultra vires of Section 4 of the Act, which in clear and unambiguous terms declares children of Indian citizens born abroad as Indian citizens, who are entitled to all rights conferred on Indian citizens. Therefore, he -7- NC: 2023:KHC:36962 WP No. 19971 of 2021 contends that the petitioner, who is born to Indian citizens abroad is entitled to be treated as Indian citizen even if she is a OCI cardholder and therefore, the impugned notification issued herein is liable to be quashed as ultra vires of the Act.
3.7 Learned counsel further contends that the notification is in clear violation of Article 14 of the Constitution of India. There is apparently no intelligible differentia between the petitioner and the student along with whom the petitioner has studied and the classification is wholly discriminatory and illegal. Learned counsel further contends that the petitioner along with other similarly placed students have studied throughout, till XII Standard from I Standard and hence, there is no rational nexus with any purported object i.e. sought to be achieved in denying the fundamental right under Article 14 of the Constitution of India to the OCI cardholders. He further contends that by issuance of this impugned notification, the petitioner and similarly placed OCI cardholders have been denied fundamental right to equality, which is available to all persons irrespective of citizenship. It is further contended that any such attempt by virtue of the impugned notification issued to achieve such an unconstitutional, illegal and negative object -8- NC: 2023:KHC:36962 WP No. 19971 of 2021 cannot be sustained and is liable to be struck-down and quashed.
3.8 Learned counsel further contends that a Division Bench of this Court in a judgment rendered in W.A.No.1177/2019 dated 09.12.2020 has declared the provisions of the Act to be in favour of the petitioner and the notification issued in similar fashion was set aside and hence, the petitioner is entitled to be treated on par with Indian citizens. Under the circumstances, when a Division Bench has already declared the notification to be bad in law and set-aside the same, there is absolutely no justification for the respondents in not allowing the petitioner to participate in the online admission, counseling and to choose any seat in IITs, NITs, IIITs and GFTIs. He further contends that the impugned notification has totally ignored and disregarded the judgment and decision rendered by the Division Bench of this Court in W.A.No.1177/2019.
3.9 Learned counsel further contends that the impugned notification has tried to over reach the judgment of this Court in WP.No.27761/2019 and W.A.No.1177/2019 which is -9- NC: 2023:KHC:36962 WP No. 19971 of 2021 constitutionally and legally impermissible and violative of the principle of 'Basic Structure Doctrine of Separation of Powers'. He further contends that by an executive order, the judgments rendered by the High Courts in India are nullified without scant respect to the concept of separation of powers and sanctity attached to the judicial verdicts and rule of law, which will become completely nugatory and the same is against the Basic Structure Doctrine. Learned counsel further contends that the petitioner has been studying in India from Class I to Class XII along with similarly placed students, who are the citizens of India. Merely because the petitioner is born outside India while her parents were working outside India during their assignment/work for temporary period, the same cannot be a ground for denying the petitioner's rights conferred under the Act. He also contends that the petitioner is not an NRI, as she does not come within the definition of NRI.
3.10 Learned counsel further contends that by the impugned notification, meritorious students will be denied admission to the professional courses, which is contrary to the law laid down by the Apex Court in the cases of Islamic Academy of Education and another vs. State of
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NC: 2023:KHC:36962 WP No. 19971 of 2021 Karnataka and Others reported in (2003)6 SCC 697 and Modern Dental College and Research Centre and Others vs. State of Madhya Pradesh and Others reported in (2016)7 SCC 353.
4. Sri Shivakumar, learned Central Government Counsel representing the respondents vehemently contends that it is the prerogative powers vested with Union of India to regulate the admission and seat selection process in educational matters. He further contends that it is a policy decision, which is undertaken by the Government of India and in exercise of the powers conferred under sub-Section (1) of Section 7B of the Act, the impugned notification has been issued by imposing certain conditions to the students, who are not citizens of India. Therefore, there is no illegality, perversity or arbitrariness and violation of the fundamental rights guaranteed under the Constitution of India by the issuance of the impugned notification and so also, there are certain rights given to the OCI cardholders. Hence, he seeks dismissal of the petitions.
5. During the pendency of this petition, vide order dated 11.11.2021, the petitioner was permitted to participate in the
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NC: 2023:KHC:36962 WP No. 19971 of 2021 counseling of JEE (Main), 2021 and JEE (Advanced), 2021 for admission to IITs, NITs, IIITs and GFTIs. for the academic year 2021-2022 under the category tag General, in view of a similar question having come up before the Hon'ble Apex Court in Writ Petition (Civil) No.1397/2020 and this Court having granted similar interim order in WP.No.17355/2021. Vide judgment of the Apex Court with regard to similar issue, similarly placed students of the OCI category were permitted to write the exam for the aforesaid courses for the academic year 2021-2022 under the Indian National category. The petitioner has pursued her academic career in IIT-Bombay.
6. In the case of Anushka Rengunthwar and Others v. Union of India and Others reported in 2023 SCC Online SC 102 at paras-57 and 60, the Hon'ble Apex Court has held as under:
"57. Therefore in the factual background of the issue involved, to sum up, it will have to be held that though the impugned notification dated 04.03.2021 is based on a policy and in the exercise of the statutory power of a Sovereign State, the provisions as contained therein shall apply prospectively only to persons who are born
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NC: 2023:KHC:36962 WP No. 19971 of 2021 in a foreign country subsequent to 04.03.2021 i.e. the date of the notification and who seek for a registration as OCI cardholder from that date since at that juncture the parents would have a choice to either seek for citizenship by descent or to continue as a foreigner in the background of the subsisting policy of the Sovereign State.
60. We further hold that 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 earlier to the notification dated 04.03.2021 and could be availed by them notwithstanding the exclusion carved out in the notification dated 04.03.2021.The participation of the petitioners and similarly placed OCI cardholders in the selection process and the subsequent action based on the interim orders passed herein or elsewhere shall stand regularised."
7. Therefore, the petitioner herein, who is similarly placed student falling within the category of the students in the case of Anushka Rengunthwar (supra) would be entitled to the similar relief granted by the Hon'ble Apex Court.
8. In view of the above discussions, the petitioner herein deserves favourable order in accordance to the judgment of
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NC: 2023:KHC:36962 WP No. 19971 of 2021 Hon'ble Apex Court in the case of Anushka Rengunthwar (supra). Therefore, the petition deserves to be allowed-in-part. Accordingly, I proceed to pass the following:
ORDER
i) The petition is allowed-in-part;
ii) The petitioner, who has, by virtue of the interim order, continued her academic career in the aforementioned educational institution namely, IIT-Bombay, her admission shall be regularised in accordance with the judgment of the Hon'ble Apex Court in the case of Anushka Rengunthwar (supra);
iii) The petitioner shall not be disturbed from pursuing her academic career in the aforesaid institution and shall be continued to be treated on par with Indian citizens in the matter of tuition fee and other academic issues till the completion of her course in IIT-Bombay.
Sd/-
JUDGE LB