ANUSHKA RENGUNTHWAR & ORS v. UNION OF INDIA & ORS

Citation: [2023] 5 S.C.R. 243

Court: Supreme Court of India

Bench: A. S. BOPANNA AND C. T. RAVIKUMAR, JJ.

Judgment text

SUPREME COURT OF INDIA ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. ANUSHKA RENGUNTHWAR & ORS. v. 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 notifications dtd. 11. 04. 2005, 05. 01. 2009, the Overseas Citizens of India (OCI) Cardholders were given the right of parity with Non-Resident Indians (NRIs) in respect of the facilities as notified, including in the 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 OCI Cardholders of appearing for the Entrance Exams to compete with Indian Citizens for the seats and restricted the admission only as against the seats reserved for the NRIs or for supernumerary seats - Proviso to clause 4(ii) of the notification further clarified that the OCI Cardholders shall not be eligible for admission against any seat reserved exclusively for Indian Citizens - Challenged by students-OCI Cardholders aspiring to become Doctors by pursuing the MBBS course by securing admission through NEET and thereafter the post-graduation/super specialty - Held: Decision to supersede the earlier notifications and take away the right of OCI Cardholders should not have been nullified without reference to the consequences - Impugned notification not saving such accrued rights indicates non application of mind and arbitrariness - Though the impugned notification is based on a policy and is in the exercise of the statutory power of a Sovereign State, the provisions contained therein shall apply prospectively only to persons born 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 - Impugned notification though competent u/s. 7B(1) 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 - Impugned portion of the notification providing for supersession of the notifications dtd. 11. 04. 2005, 05. 01. 2007, 05. 01. 2009 and the clause 4(ii), its 243 proviso and Explanation (1) thereto shall operate prospectively in respect of OCI cardholders who have secured the same subsequent to 04. 03. 2021 - Citizenship Amendment Act, 2003 - Constitution of India - Article 11, 14 - Foreigners Act, 1946 - s. 2(a) - Doctrine of Legitimate Expectation. Citizenship Act, 1955 - ss.

7A, 7B(1) - Right of the Overseas Citizens of India (OCI) Cardholders - Held: The right of the OCI Cardholders is a midway right in the absence of dual citizenship - When a statutory right was conferred and such right was being withdrawn through a notification, the process for withdrawal is required to demonstrate that the action taken is reasonable and has nexus to the purpose - It should not be arbitrary, without basis and exercise of such power cannot be exercised unmindful of consequences merely because it is a sovereign power - Citizenship Amendment Act, 2003. Citizenship Act, 1955 - s. 7B(2) - Plea of the petitioners that since s.

7B(2) does not exclude the right u/Article 14, it is available to be invoked and discrimination contemplated in the impugned notification to exclude the OCI Cardholders should be struck down - Held: Article 14 can be invoked and contend discrimination only when persons similarly placed are treated differently - The OCI Cardholders being a class by themselves cannot claim parity with the Indian citizens, except for making an attempt to save the limited statutory 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 are either 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 the petitioners are registered as Overseas Citizens of India cardholders is not in dispute. The right to which they are making a claim is conferred under Section 7B(1) to Act, 1955.

The right to education which was conferred under the notification dated 11. 04. 2005, in parity with the Non-Resident Indians is due to the fact that the Non-Resident Indians which is a separate class, had such right similar to that of the Indian citizens in matters relating to education. It is based on such right being conferred as far back as in the year 2005, the OCI Cardholders were taking part ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. in the process of selections conducted for undertaking educational courses in India. Such benefit was extended to appear for the 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, through the notification dated 05. 01. 2009. The said benefit is being enjoyed by all the OCI Cardholders in the same manner as the Non-Resident Indians were enjoying along with the Indian citizens.

In that circumstance, most of such OCI Cardholders have been pursuing their entire educational career in India. The extracted details would indicate that in all the cases the petitioners have studied for more than six years in India and in most of the cases, almost the entire educational career up to the stage of the qualifying examination for the Pre-Medical Test has been undertaken in India. Apart from the specific cases noted herein, there are also petitioners/persons who had become citizens of a foreign country for compelling reasons, but hold benefit of OCI card. This would demonstrate that though in terms of law, the petitioners were 'foreigners' due to the incident of birth in a foreign country or such other compelling circumstances, they continue to remain in India and to pursue their education and had fully justified the mid-path benefit given to them based on 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 notification dated 11. 04. 2005 and 05. 01. 2009 insofar as the educational parity, including in the matter of appearing for the All India Pre-Medical Test or such other tests to make them eligible for admission has been completely altered. Though the notification ex facie may not specify retrospective application, the effect of superseding the 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 on which the petitioners and similarly placed persons have altered their position and have adjusted the life's trajectory with the hope of furthering their career in professional education. [Para 44][292- F-G] 1.

3 Article 14 of the Constitution can be invoked and contend discrimination only when persons similarly placed are treated differently and in that view the OCI Cardholders being a class by themselves cannot claim parity with the Indian citizens, except for making an attempt to save the limited statutory right bestowed. To that extent certainly the fairness in the procedure adopted has a nexus with the object for which change is made and the application of mind by the Respondent No. 1, before issuing the impugned notification requires examination. [Para 45][293-A-B] 1. 4 The right of the OCI Cardholders is a midway right in the absence of dual citizenship. When a statutory right was conferred and such right is being withdrawn through a notification, the process for withdrawal is required to demonstrate that the action taken is reasonable and has nexus to the purpose.

It should not be arbitrary, without basis and exercise of such power cannot be exercised unmindful of consequences merely because it is a sovereign power. Except for the bare statement in the objection statement, there is no material with regard to the actual exercise undertaken to arrive at a conclusion that the participation of OCI Cardholders in the selection process has denied the opportunity of professional education to the Indian citizens. There are no details made available about the consideration made as to, over the years how many OCI cardholders have succeeded in getting a seat after competing in the selection process by which there was denial of seats to Indian Citizens though they were similar merit-wise. [Paras 46, 47][293-C-D; 294-B-C] 1. 5 It is sought to be pointed out on behalf of the petitioners that the explanation put forth does not indicate the true State of Affairs in as much as, seats have still remained vacant in the previous years.

It is no doubt true that as contended by the learned Additional Solicitor General, the vacancies will remain due to several factors such as reservation of seats, other permutations and combinations as also the preferred and non-preferred colleges. Be that as it may, the dire need to take away the bestowed right by applying the impugned notification even to young students who technically though are not citizens of this country but were provided certain rights in such manner would not be justified as it does not demonstrate nexus to the object sought to be achieved. Policy decision for the future, certainly is ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. within the domain of Respondent No. 1 based on the sovereign powers of the State. Even on that aspect all that has been stated is that the decision to issue the notification was taken in the meeting of Secretaries held on 19. 07. 2018 without indicating the nature of deliberations.

Therefore, in that perspective, keeping in view the present position, 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 right should not have been nullified without reference to the consequences. Having undertaken the entire educational career in India or at least the High School onwards, they cannot at this stage turn back to the country in which they were born to secure the professional education as they would not be in a 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 the year 2005 for issue of OCI cards was in response to the demand for dual citizenship and as such, as an alternative to dual citizenship which was not recognised, the OCI card benefit was extended.

If in that light, the details of the first petitioner taken note is analysed in that context, though the option of getting the petitioner No. 1 registered as a citizen under Section 4 of Act, 1955 by seeking citizenship by descent soon after her birth or even by registration of the citizenship as provided under Section 5 of Act, 1955, was available in the instant facts to her parents, when immediately after the birth of petitioner No. 1 the provision for issue of OCI cards was statutorily recognised and under the notification the right to education was also provided, the need for parents of petitioner No. 1 to make a choice to acquire the citizenship by descent or to renounce the citizenship of the foreign country and seek registration of the Citizenship of India did not arise to be made, since as an alternative to dual citizenship the benefit had been granted and was available to petitioner No.

1 and the entire future was planned on that basis and that situation continued till the year 2021. Further, as on the year 2021 when the impugned notification was issued the petitioner No. 1 was just about 18 years i. e. , full age and even if at that stage, the petitioner was to renounce and seek for citizenship of India as provided under Section 5(1)(f)(g), the duration for such process would disentitle her the benefit of the entire education course from pre-school stage pursued by her in India and the benefit for appearing for the Pre- Medical Test which was available to her will be erased in one stroke. Neither would she get any special benefit in the country where she was born. Therefore in that circumstance when there was an assurance from a sovereign State to persons like that of the petitioner No.

1 in view of the right provided through the notification issued under Section 7B(1) of Act, 1955 and all 'things were done' by such Overseas Citizens of India to take benefit of it and when it was the stage of maturing into the benefit of competing for the seat, all 'such things done' should not have been undone and nullified with the issue of the impugned notification by superseding the earlier notifications so as to take away even the benefit that was held out to them. [Paras 50, 51][296-G-H; 297-A-F] 1. 7 On the face of it the impugned notification not saving such accrued rights would indicate non application of mind and arbitrariness in the action.

Further in such circumstance when the stated object was to make available more seats for the Indian Citizens and it is demonstrated that seats have remained vacant, the object for which such notification was issued even without saving the rights and excluding the petitioners and similarly placed OCI Cardholders with the other students is to be classified as one without nexus to the object. As taken note earlier during the course this order, the right which was granted to the OCI cardholders in parity with the NRIs was to appear for the Pre- Medical Entrance Test along with all other similar candidates i. e. the Indian citizens. In a situation where it has been demonstrated that the petitioner No.

1 being born in the year 2003, has been residing in India since 2006 and has received her education in India, such student who has pursued her education by having the same 'advantages' and 'disadvantages' like that of any other students who is a citizen of India, the participation in the Pre-Medical Entrance Test or such other Entrance Examination would be on an even keel and there is no greater advantage to the petitioner No. 1 merely because she was born in California, USA. Therefore, the right which had been conferred and existed had not affected Indian citizens so as to abruptly deny ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. all such rights. The right was only to compete. It could have been regulated for the future, if it is the policy of the Sovereign State. No thought having gone into all these aspects is crystal clear from 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 object with which the Act, 1955 was amended so as to provide the benefit to Overseas Citizen of India and in that context when rights were given to the OCI cardholders through the notifications issued from time to time, based on which the OCI cardholders had adopted to the same and had done things so as to position themselves for the future, the right which had accrued in such process could not have been taken away in the present manner, which would act as a 'retroactive' notification. Therefore, though the notification ex-facie does not specify retrospective operation, since it retroactively destroys the rights which were available, it is to be ensured that such of those beneficiaries of the right should not be affected by such notification.

Though the rule against retrospective construction is not applicable to statutes merely because a part of the requisite for its action is drawn from a time antecedent to its passing, in the instant case the rights were conferred under the notification and such rights are being affected by subsequent notification, which is detrimental and the same should be avoided to that extent and be allowed to operate without such retroactivity. It 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. The retroactive operation resulting in retrospective consequences should be set aside and such adverse consequences is to be avoided.

[Paras 53, 54][298-D-H; 299-A] 1. 10 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 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. The respondent No. 1 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 leading thereto should demonstrate application of mind, nexus to the object of such withdrawal or modification and any such decision should be free of arbitrariness. In that background, the impugned notification dated 04. 03. 2021 though competent under 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 as a matter of policy of the Sovereign State. Hence, the notification being sustainable prospectively, it is hereby declared that the impugned portion of the notification which provides for supersession of the notifications dated 11. 04. 2005, 05. 01. 2007 and 05. 01. 2009 and the clause 4(ii), its proviso and Explanation (1) thereto shall operate prospectively in respect of OCI cardholders who have secured the same subsequent to 04. 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. Union of India Thr. Secretary Ministry of Law and Justice (2018) 10 SCC 1 : [2018] 7 SCR 379; LIC v. Consumer Education and Research Centre(1995) 5 SCC 482 : [1995] 1 Suppl. SCR 349; Universal Imports Agency & Ans. Vs. Chief Controller of Imports and Exports and Ors. [1961] 1 SCR 305; Navjyoti Coop. Group Housing Society and Ors. v. Union of India & Ors. (1992) 4 SCC 477 : [1992] 1 Suppl. SCR 709; J. K. Industry Ltd. v. Union of India(2007) 13 SCC 673 : [2007] 12 SCR 136; State of Punjab and Ors. v. Ram Lubhaya Bagga & Ors. (1998) 4 SCC 117 : [1998] 1 SCR 1120; ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. Izhar Ahmed Khan & Ors. v. Union of IndiaAIR 1962 SC 1052 : [1962] Suppl. SCR 235; Indo-China Steam Navigation Co. Ltd. vs. Jasjit Singh & Ors. AIR 1964 SC 1140 : [1964] SCR 594; State of A. P. v.

Khudiram Chakma (1994) Supple 1 SCC 615 : [1993] 3 SCR 401; Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors. AIR 1955 SC 367 : [1955] SCR 1284; State of W. B. v. Anwar Ali Sarkar AIR 1952 SC 75 : [1952] SCR 284; Budhan Choudhary v. 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, Central Board of Directors (2001) 2 SCC 259 : [2000] 5 Suppl. SCR 368 - referred to. Case Law Reference [1978] 2 SCR 621 referred to Para 24 [2018] 7 SCR 379 referred to Para 25 [1995] 1 Suppl. SCR 349 referred to Para 26 [1961] 1 SCR 305 referred to Para 27 [1992] 1 Suppl. SCR 709 referred to Para 28 [2007] 12 SCR 136 referred to Para 29 [1998] 1 SCR 1120 referred to Para 31 [1962] Suppl.

SCR 235 referred to Para 32 (i) [1964] SCR 594 referred to Para 32 (ii) [1993] 3 SCR 401 referred to Para 32 (iii) [1955] SCR 1284 referred to Para 32 (iv) [1952] SCR 284 referred to Para 33 (i) [1955] 1 SCR 1045 referred to Para 33 (ii) [1976] 1 SCR 906 referred to Para 33 (iii) [2000] 5 Suppl. SCR 368 referred to Para 34 CIVIL ORIGINAL/APPELLATE JURISDICTION: Writ Petition (Civil) No. 891 of 2021. Under Article 32 of The Constitution of India With Writ 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 Petition (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, Bikram Dwivedi, Rohan Sharma, Dr. Mukut Nath Verma, B. K. Satija, Himanshu Satija, Harshit Khanduja, Mrs. Neha Mehta, Abhay Pratap Singh, Sriram P. , M/s. K J John and Co, Pratap Venugopal, Ms. Surekha Raman, Akhil Abraham Roy, Vijay Valsan, Abhishek Anand, Ms. Unnimaya S. , Abishek Jebaraj, Ms. Srishti Agnihotri, Ms. Sanjana Grace Thomas, Ms. A. Reyna Shruti, Ms. Mantika Vohra, Renjit V. Philip, Mukund P. Unny, Advs. for the Petitioners. Ravindra Keshavrao Adsure, Lav Mishra, Rohan Darade, Yash Prashant Sonawane, Ms. Sakshi Ajit Kale, Advs. for the Applicant. Ms. Aishwarya Bhati, A. S. G. , Ms. Chitrangada R. , M. Singh, Aman Sharma, Ms. Poornima Singh, Rustam Chauhan, Apoorva Kurup, Mrs. 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, Sibo Sankar Mishra, Nishe Rajen Shonker, Abraham C. Mathew, Mrs. Anu K Joy, Alim Anvar, Rajat Joseph, Hrishikesh Chitaley, Vijay Kari Singh, Ranjeet Sangle, A. Karthik, Krishan Kumar, Ms. Rekha Dayal, Hitesh Kumar Sharma, S. K. Rajora, Akhileshwar Jha, Niharika Dwivedi, Ms. Shweta Sand, Ravish Kumar Goyal, Ms. Nitin Sharma, Amit Kumar Chawla, Anil Kumar, Gaurav Sharma, Dhawal Mohan, Prateek Bhatia, Advs. 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 Citizens of India card holders. They are all students who have just reached the full age or are below this age.

All the petitioners are aspiring to become Doctors by pursuing the MBBS course by securing admission through NEET selection process and thereafter the post-graduation as also the super specialty in the field of medicine. Some of them are also seeking to pursue post-graduation and also a super specialty. For the purpose of narration of facts, the averments as put forth in W. P. (C) No. 891 of 2021 which was taken as the lead case is noted. The petitioners contend that they have been putting in all efforts and were preparing to appear for the NEET-UG examinations based on the right which was available to them under the notifications dated 11. 04. 2005 and 05. 01. 2009. Through the 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 the field of education, who in turn had the parity with Indian Citizens.

Through the notification dated 05. 01. 2009, the said right to education in India was also extended further, to appear for the All India Pre-Medical Test or such other tests to make them eligible for admission in pursuance to the provisions contained in the relevant acts. In view of such right being extended to the OCI Cardholders by respondent No. 1 in exercise of the powers under Section 7B(1) of the Citizenship Act, 1955 ("Act 1955" for short), the petitioners were also assured of appearing for the NEETUG exam so as to compete to secure a seat to pursue the medical course. 2. Such right was available to the petitioners from a point almost immediately after their birth, since the petitioners in these petitions were born in the year 2003 onwards. Except for the fact that they were born in a foreign country, they had lived in this country for periods ranging from 10 to 15/17 years.

In that view, the entire educational career was pursued in India, including the 12th standard so as to qualify for the NEETUG examinations and MBBS Course. In fact, in most of the cases, both parents of the petitioners herein are Indian nationals and in any case, one of them is an Indian national. Even in cases where both the parents are OCI Cardholders, the children have lived most of their life in India since their roots remain to be in India where grandparents and family are here. 3. When this was the position the respondent No. 1 issued the notification dated 04. 03. 2021 in exercise of the power under Section 7B(1) of Act, 1955 whereunder the existing right of appearing for the Entrance Exams to compete with Indian Citizens for the seat was taken away and restricted the admission only as against the seats reserved for the Non-Resident Indians or for supernumerary seats. The proviso to clause 4(ii) of the impugned notification dated 04. 03.

2021 in fact clarifies that the OCI cardholders shall not be eligible for admission against any seat reserved exclusively for Indian Citizens. This is done so, by providing an explanation that the OCI Cardholder is a foreign national holding passport from a foreign country and is not a citizen of India. 4. The petitioners, therefore, contend that such notification falls foul of the Doctrine of Non -Retrogression since the right which was being bestowed from the year 2005, instead of progressing and maturing to be a better right was being curtailed and reversed. The petitioners also contend that the right guaranteed under Articles 14 and 21 of the Constitution of India is violated since such right is available to "any person", even if one is not a citizen of India. In the instant facts, the petitioners have no quarrel with the validity of Sections 7B(1), 7D, 8(1) and 9(1) of Act, 1955.

The petitioners while accepting the sovereign power of the respondents, are only aggrieved by the manner in which the impugned notification dated 04. 03. 2021 is issued, by which an existing right has been taken away. The petitioners thus contend that they are not only OCI Cardholders, but are resident OCI Cardholders and therefore they should be treated like any other Citizen of India. Since respondent No. 1 through the impugned notification has disentitled the OCI Cardholders from the process of admission to the seats to which the Indian citizens are entitled to participate in the selection process, they have approached this court assailing the impugned notification dated 04. 03. 2021, in these petitions under Article 32 of the Constitution of India. 5. The petitioners have accordingly sought for issue of an appropriate writ to quash clause 4(ii), its proviso and Explanation (1) as contained in the impugned notification dated 04. 03. 2021 bearing F No. 2611/CC/05/2018-OCI. 6.

The respondent No. 1 has filed its objection statement seeking to justify the notification. It is necessary to take note herein that though in the instant batch of the petitions, the validity of the provisions in the ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. Citizenship Act has not been assailed, in an another petition bearing W. P. (C) No. 1397 of 2020 since there is a challenge to the said provisions and was earlier tagged with these petitions, the respondents in the common counter affidavit have also referred to the provisions of the Act and the Constitution of India in order to justify its validity. Since those aspects do not require consideration in this batch of cases, the objections by respondent No. 1 insofar as seeking to justify the issue of the impugned notification dated 04. 03. 2021 alone is taken note. In that regard, it is contended that as per the notification dated 11. 04. 2005, the OCI Cardholders were given parity with NRIs in the educational field.

Under the notification dated 05. 01. 2009, the OCI Cardholder students were entitled to appear for All India Pre Medical Test and such other tests to make them eligible for admission. It is averred that a harmonious reading of 2005 and 2009 notifications leads to the conclusion that the OCI Cardholder students have parity to the NRIs and therefore can lay claim only to NRI quota seats. The educational right of OCI Cardholder students were discussed in a meeting of the Committee of Secretaries held on 19. 07. 2018 wherein it was agreed that the OCI Cardholders may be treated at par with NRI, in the quota of NRI and they ought not to be eligible against seats meant for Indian citizens. Hence, it was felt that relevant notifications be issued by the Ministry of Home Affairs. In that view, the consolidated notification dated 04. 03.

2021 was issued in exercise of the power under Section 7B(1) of Act, 1955 whereby the earlier notifications of 2005, 2007 and 2009 were incorporated so as to bring clarity with regard to the various provisions. It is contended that the rationale is to protect the rights of the Indian Citizens and in such matters, State may give preference to its citizens vis-à-vis foreigners holding OCI Cards. In that regard it is stated that the number of seats available for medical and engineering courses in India are very limited and does not fully cater to the requirement of the Indian citizens. Hence the right to admission to such seats should be primarily available to Indian citizens instead of foreigners including OCI Cardholders.

It is contended that the right to claim the protection under Article 14, 19 and 21 of the Constitution are not available to a person who is not a citizen, more particularly in matters of education and is limited to the privilege bestowed through a notification issued under the Act. The respondent No. 1 therefore seeks to justify and sustain the notification dated 04. 03. 2021, a portion of which is under challenge. 7. In the light of the above we have heard Mr. P. Chidambaram and Mr. K. V. Viswanathan learned senior counsels for the respective petitioners as also Mr. Kunal Cheema and the other learned counsels appearing 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 documents made available to us. 8. The summary of the arguments on behalf of the petitioners is as hereunder; This Court vide order dated 8. 11.

2021 in WP 1397 of 2020 passed a general order applicable to all eligible candidates who are similarly situated to appear for counselling in General at par with Indian citizens and same was made applicable to a variety of courses stated therein. Many of the Petitioners in WP No. 891 of 2021, who were all NEET-2021 aspirants, appeared for NEET 2021 and also qualified and have secured admissions and are pursuing their academic courses. They would be in their 2nd year of studies. There would be other OCIs also who are not part of the writ petitions, but would have taken the benefit of the order dated 08. 11. 2021 passed by this Hon'ble Court, which was a general order applicable to all. The OCIs have been equated with NRIs all along since 2005 as regards various rights conferred under Section 7B(1) of the Citizenship Act and more particularly rights regarding education. That vide notification dated 05. 01.

2009, OCIs were permitted to carry out various professions in India as enumerated therein. That in view of the various rights having been given and more particularly education rights and right to work in India and also because many OCIs have their grandparents/families/roots in India, they came back to India long back and have been residing and working here and contributing to the nation like any other citizen in the form of taxes etc. The span of living here ranges as long as about 16 to 17 years. ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. That till up to 04. 03. 2021 (impugned notification), OCIs were entitled to seek admission to all seats like NRIs were (who are still entitled to) and not restricted to only NRI seats or supernumerary seats, but pursuant to the said portion of the impugned notification, OCIs are now entitled to only seats reserved for NRI i. e.

NRI seats or supernumerary seats, which is discriminatory and violative of Article 14 and 21 of the Constitution of India. Article 14 prohibits class legislation, but permits reasonable classification. However, for reasonable classification to be valid, there are twin tests i. e. (i) classification must be founded on intelligible differentia and (ii) that the differentia must have a rational relation to the object sought to be achieved. The seats have remained, unfilled. Hence Indian Citizens are not prejudiced. That Article 14 and 21 are available to "persons" and not only citizens and hence the OCIs who are "persons" and who have been residing in India for years together, in view of the rights of living (since life long visa is granted) and undertaking various professions in India granted under section 7B vide 05. 01.

2009 notification, have a right not to be discriminated against, which is guaranteed under Article 14 and also have a right of meaningful existence, which is a facet of Article 21 of the Constitution of India. Moreover, there is no valid rationale for having withdrawn the said rights of being entitled to various seats other than seats reserved for NRIs, which they have been enjoying for considerable amount of time at par with NRIs, who today (notification dated 12. 10. 2022) also are entitled to all seats including seats reserved for Non-Residents. It is further contended that the only object as can be culled out from the Counter Affidavit of the Respondent no. 1 appears to be to 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 took admissions then, few hundred seats were remaining vacant at the end of final counselling.

In fact the data also shows that seats have been significantly increased year on year, yet at the end of final counseling seats have remained vacant. Hence, it is clear that the said objective is a misnomer and the said portion of the impugned notification smacks of arbitrariness and non-application of mind. The said portion of the impugned notification falls foul of the doctrine of "non-retrogression" as discussed in the matter of Navtej Singh Johar [2018 (10) SCC 1], as it is resulting in withdrawal of the rights which the OCIs have enjoyed for the past several years. OCIs have taken up particular stream of education, passing 10th and 12th from schools in same state, meeting domicile/residence requirements, keeping in mind the rights which were available to them and hence their such acts would be saved as "things done" as per the words "except as respect things done or omitted to be done before such supersession" appearing in impugned notification dtd 04. 03. 2021.

In support of this submission, reliance was placed on Universal Import Agency and Anr. v. The Chief Controller of Imports and Exports and Ors. [1961 (1) SCR 305] The OCIs were entitled to have "legitimate expectation" as enshrined in the case of Navjyoti [1992 (4) SCC 477] that the said rights will continue to be available to them and not retrograded. That only a limited number of OCIs take the exam and out of them only a minuscule number clear the same and become eligible for admission. Hence no grave prejudice was being caused if the OCIs were allowed to seek admission to all seats based on merit and withdrawal of the same is therefore arbitrary and unreasonable. 9.

The summary of the contention on behalf of the respondents as put forth by the learned Additional Solicitor General is as follows; The present case essentially raises a singular issue with regard to the classification made between Indian citizens and Overseas Citizens of India cardholders and the same being statutory, whether it is sustainable. It is contended that the classification made by the impugned notification is supported by statutory provisions which legitimizes the State's interest and ensures that the limited number of seats in educational institutions are available to Indian citizens and not taken away by foreigners. It is contended that for any sovereign country, the rights and privileges that are extended to the non-citizens are in exercise of inviolable sovereign powers and are essentially unfettered and unqualified. The courts have ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS.

consistently declined to interfere in visa, immigration or such issues relating to foreigners. The power of exclusion of foreigners being an incident of sovereignty is that of the Government to be exercised. The OCI regime is a privilege extended by the Parliament and the Executive, falling squarely in the domain of the sovereign policy of the country. The Citizenship is regulated in Part II (Articles 5 to 11) of the Constitution of India pursuant to which the Citizenship Act is enacted to regulate the same. Section 2(ee) of the Citizenship Act defines OCI cardholders to mean a person registered as an Overseas Citizens of India cardholder by the Central Government under Section 7A of the Act. The learned Additional Solicitor General on referring to the said constitutional provisions and the Citizenship Act would point out that the privilege of securing education in India was pursuant to the conferment of the same in terms of Section 7(B) of the Act by the issue of notification. 10.

The Notification dated 04. 03. 2021 which is impugned in these petitions is issued by the Ministry in continuation of the policy of the Union of India in conformity with the constitutional principles. With reference to the Notification, it is contended that it is very evident and clear that the intention was not to give the OCI cardholders parity with Indian citizens at any stage with regard to admission but the parity was always with NRIs. The policy was consistent from 2004 when the OCI cardholders' mechanism was started, to treat them at par with the NRIs. However, there was some dichotomy in the interpretation of the earlier Notifications and the benefit which was available to the NRIs for the seats along with Indian citizen students was also being extended. Therefore, after comprehensive consultation on the educational rights of the OCI cardholders in the meeting held on 19. 07.

2018 it was decided that the OCI cardholders may be treated at par with NRIs in the quota for NRI seats and they would not be eligible against the seats meant for Indian citizens. 11. Hence the issue of the consolidated Notification of 04. 03. 2021 was in supersession of earlier Notifications of 2005, 2007, and 2009 to bring clarity with regard to various provisions which were under consideration of the Ministry of Home Affairs for quite some time. In this context, consultations were held with all stakeholders and the Notification was issued. 12. Reference to the judgments cited by the learned Additional Solicitor General to substantiate her contention that the consideration with regard to the validity of the Notification cannot be of a similar purport when it is assailed by the citizens of India and other decisions referred to would be considered at the appropriate stage.

The sum and substance of the contention is that the decision is with the object of legitimate public interest and in the interest of the Indian citizens. Hence, it is contended that the impugned Notification does not call for interference and the petitioners are not entitled to seek any relief from this Court. 13. In the light of rival contentions, at the threshold it is necessary to take note that though the arguments were elaborately addressed and the learned Additional Solicitor General referred in detail to the provisions of the constitution relating to citizenship and also the sovereign power of the respondent No. 1 under the Act, 1955, we do not find it necessary to dwell into much detail in this batch of petitions. This is for the reason that from the very case put forth by the petitioners they are not questioning the power of respondent No. 1 to issue notifications prescribing the right in respect of OCI Cardholders.

However, the grievance is only that a right which existed in their favour has been altered to their detriment without application of mind to the fact that most of the petitioners have spent their entire lifetime in India and also pursued their educational careers in India including appearing for the qualifying exam. As such the only grievance of the petitioners herein is with regard to the proviso to clause 4(ii) and Explanation contained in the impugned notification dated 04. 03. 2021 whereunder a limitation has been prescribed wherein they have been made entitled only to the seats available to NRIs and they have been specifically excluded from seeking admission to the seats which are exclusively available to the Indian citizens. 14. In that regard, the provisions of Act, 1955 which are to be noted 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 application made in this behalf, register as an Overseas Citizen of India Cardholder- (a) any person of full age and capacity,- (i) who is citizen of another country, but was a citizen of India at the time of, or at any time after, the commencement of the Constitution; or ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS.

(ii) who is citizen of another country, but was eligible to become a citizen of India at the time of the commencement of the Constitution; or (iii) who is citizen of another country, but belonged to a territory that became part of India after the 15th day of August, 1947; or (iv) who is a child or a grandchild or a great grandchild of such a citizen; or (b) a person, who is a minor child of a person mentioned in clause (a); or (c) a person, who is a minor child, and whose both parents are citizens of India or one of the parents is a citizen of India; or (d) spouse of foreign origin of citizen of India or spouse of foreign origin of an Overseas Citizen of India Cardholder registered under section 7A and whose marriage has been registered and subsisted for a continuous period of not less than two years immediately preceding the presentation of the application under this section: Provided that for the eligibility for registration as an Overseas Citizen of India Cardholder, such spouse shall be subjected to prior security clearance by a competent authority in India: Provided further that no person, who or either of whose parents or grandparents or great grandparents is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by notification in the Official Gazette, specify, shall be eligible for registration as an Overseas Citizen of India Cardholder under this sub-section.

2. The Central Government may, by notification in the Official Gazette, specify the date from which the existing Persons of Indian Origin Cardholders shall be deemed to be Overseas Citizens of Indian Cardholders. Explanation. - For the purposes of this sub-section, "Persons of Indian Origin Cardholders" means the persons registered as such under notification number 26011/4/98 F. I. , dated the 19th August, 2002, issued by the Central Government in this regard. 3. Notwithstanding anything contained in sub-section (1), the Central Government may, if it is satisfied that special circumstances exist, after recording the circumstances in writing, register a person as an Overseas Citizen of India Cardholder. " "7B.

Conferment of rights on Overseas Citizen of India Cardholder (1) Notwithstanding anything contained in any other law for the time being in force, an Overseas Citizen of India Cardholder shall be entitled to such rights [other than the rights specified under sub-section (2)] as the Central Government may, by notification in the Official Gazette, specify in this behalf.

(2) An Overseas Citizen of India Cardholder shall not be entitled to the rights conferred on a citizen of India- (a) under article 16 of the Constitution with regard to equality of opportunity 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 a Judge of the Supreme Court; (e) under article 217 of the Constitution for appointment as a Judge of the High Court; (f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to registration as a voter; (g) under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard to the eligibility for being a member 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 People Act, 1951 (43 of 1951) with regard to the eligibility for being a member of the Legislative Assembly or the Legislative Council, as the case may be, of a State; (i) for appointment to public services and posts in connection with the affairs of the Union or of any State except for appointment in ANUSHKA RENGUNTHWAR & ORS.

v. UNION OF INDIA & ORS. such services and posts as the Central Government may, by special order in that behalf specify. (3) Every notification issued under sub-section (1) shall be laid before each House of Parliament. " (emphasis supplied) 15. The above-noted provisions were inserted initially during the year 2004 and were thereafter substituted on the introduction of the provisions in the year 2005 and substituted time to time thereafter. On foreign citizens of such category being given the status of OCI Cardholders, it also provided for conferment of rights on OCI Cardholders as 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 as hereunder:- "MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 11th 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), the Central Government hereby specifies the following rights to which the persons registered as Overseas Citizens of India under Section 7A of the said Act shall be entitled, namely:- (a) grant of multiple entry lifelong visa for visiting India for any purpose; (b) exemption from registration with Foreign Regional Officer or Foreign Registration Officer for any length of stay in India; and (c) parity with Non-Resident Indians in respect of all facilities available to them in economic, financial and educational fields except in matters relating to the acquisition of agricultural or plantation properties. [F. No. 26011/2/2005-IC] DURGA SHANKER MISHRA, Jt. Secy. " (emphasis supplied) 17.

Through the said notification, apart from granting multiple entry life-long visa for visiting India for any purpose, insofar as economic, financial and educational fields, parity with Non-Resident Indians was provided, except for acquisition of agricultural or plantation properties. By a subsequent notification dated 05. 01. 2007 issued under Section 7B(1) of Act, 1955, though no right relating to the field of education was referred to, the OCI Cardholders were given similar treatment with Non-Resident Indians in the matter of inter-country adoption of Indian children and also to be treated at par with the Indian Nationals in the matter of tariffs in air fares and also for same entry fee being charged to domestic Indian visitors to visit National Parks and Wildlife Sanctuaries. 18. Further, a notification dated 05. 01.

2009 relating to pursuing professions and admission to professional course was issued, which reads as hereunder: "MINISTRY OF OVERSEAS INDIAN AFFAIRS NOTIFICATION New Delhi, the 5th 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 in continuation of the notifications of the Government of India in the Ministry of Home Affairs number S. O. 542(E), dated the 11th April, 2005 and in the Ministry of Overseas Affairs S. O.

12(E), dated the 6th January, 2007, the Central Government hereby specifies the following rights to which the persons registered as the overseas citizen of India under Section 7A of the said Act, shall be entitled, namely :- (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, in pursuance of the provisions contained in the relevant act, namely:- (i) Doctors, dentists, nurses and pharmacists; (ii) Advocates; ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. (iii) Architects; (iv) Chartered accountants; (b) To appear for the 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. [F. No. OI-15013/13/2008-DS] D. N. SRIVASTAVA, Jt. Secy. " (emphasis supplied) 19. Through the said notification dated 05. 01.

2009 the OCI Cardholders were given the right to pursue the professions indicated therein, in India and also to appear for the All-Indian Pre-Medical Test or such other tests to make them eligible for admission in pursuance of the provisions contained in the relevant Acts. Since NRIs had parity with the Indian Citizens in that regard, the same benefit became extended to the OCI Cardholders including the petitioners herein. 20.

A cumulative perusal of the three notifications of 2005, 2007 and 2009 heavily relied on by the learned senior counsel for the petitioners would certainly indicate that from the stage of amendment to Act, 1955 through Section 7A to 7D thereof and the notifications issued pursuant thereto, conferring rights under Section 7B(1) and such right being expanded from stage to stage, it would indicate that based on the need, progression was made in conferring better right to the Overseas Citizens of India who, except for the incident of their birth in a foreign country were in all other respects similarly placed as that of Indian citizens and the limited foreign affiliation of NRI and OCI Cardholders made them to be compared with each other for parity. In fact, for the purpose of air fares and entry fee to places of interest, they were given parity with Indian nationals.

It is in that view contended that taking away such a right that was available in the changing social scenario would amount to retrogression when in fact better right should have been conferred. 21. In that background, it would be necessary to refer to the impugned notification dated 04. 03. 2021 which reads as hereunder: "MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 4th March, 2021 S. O. 1050(E) - In exercise of the powers conferred by sub-section (1) of section 7B of the Citizenship Act, 1955 (57 of 1955) and in supersession of the notification of the Government of India in the Ministry of Home Affairs published in the Official Gazette vide number S. O. 542(E), dated the 11th April, 2005 and the notifications of the Government of India in the erstwhile Ministry of Overseas Indian Affairs published in the Official Gazette vide numbers S. O. 12(E), dated the 5th January, 2007 and S. O.

36(E), dated the 5th January, 2009, except as respect things done or omitted to be done before such supersession, the Central Government hereby specifies the following rights to which an Overseas Citizen of India Cardholder (hereinafter referred to as the OCI cardholder) shall be entitled, with effect from the date of publication of this notification in the Official Gazette, namely:- (1) grant of multiple entry lifelong visa for visiting India for any purpose Provided that for undertaking the following activities, the OCI cardholder shall be required to obtain a special permission or a Special Permit, as the case may be, from the competent authority or the Foreigners Regional Registration Officer or the Indian Mission concerned, namely:- (i) to undertake research; (ii) to undertake any Missionary or Tabligh or Mountaineering or Journalistic activities; (iii) to undertake internship in any foreign Diplomatic Missions or foreign Government organisations in India or to take up employment in any foreign Diplomatic Missions in India; (iv) to visit any place which falls within the Protected or Restricted or prohibited areas as notified by the Central Government or competent authority; ANUSHKA RENGUNTHWAR & ORS.

v. UNION OF INDIA & ORS.

(2) exemption from registration with the Foreigners Regional Registration Officer or Foreigners Registration Officer for any length of stay in India: Provided that the OCI cardholders who are normally resident in India shall intimate the jurisdictional Foreigners Regional Registration Officer or the Foreigners Registration Officer by email whenever there is a change in permanent residential address 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, historical sites and museums in India; (4) parity with Non-Resident Indians in the Matter of,- (i) inter-country adoption of Indian children subject to the compliance of the procedure as laid down by the competent authority for such adoption; (ii) appearing for the all India entrance tests such as National Eligibility cum Entrance Test, Joint Entrance Examination (Mains), Joint Entrance Examination (Advanced) or such other tests to make them eligible for admission only against any Non-Resident Indian seat or any supernumerary seat; Provided that the OCI cardholder shall not be eligible for admission against any seat reserved exclusively for Indian citizens.

(iii) Purchase or sale of immovable properties other than agricultural land or farm house or plantation property; and (iv) Pursuing the following professions in India as per the provisions contained in the applicable relevant statutes or Acts as the case may be, namely:- (a) doctors, dentists, nurses and pharmacists; (b) advocates; (c) architects; (d) chartered accountants; (5) in respect of all other economic, financial and educational fields not specified in this notification or the rights and privileges not covered by the notifications made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999), the OCI cardholder shall have the same rights and privileges as a foreigner. Explanation - For the purposes of this notification,- (1) The OCI Cardholder (including a PIO cardholder) is a foreign national holding passport of a foreign country and is not a citizen of India.

(2) "Non-resident Indian" shall have the same meaning as assigned to it in the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018 made by the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999) and who fulfills the "Non-Resident Indian" status as per the Income Tax Act, 1961 (43 of 1961). [F. No. 26011/CC/05/2018-OCI] PRAMOD KUMAR, Director" (emphasis supplied) 22. A perusal of the notification dated 04. 03. 2021 would ex facie indicate that the rights bestowed thereunder on theOCI Cardholders are in fact a consolidation of the rights which had been bestowed through the notification dated 11. 04. 2005, 05. 01. 2007 and 05. 01. 2009. However, the impugned portion of the notification is the portion which has been emphasised i. e. the proviso to clause 4(ii) and Explanation (1) thereto and limiting the parity only to NRI seats and supernumerary seats.

Through the impugned portion of the notification, the parity which existed with Non-Resident Indians including in the field of education has been modified ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. to indicate their eligibility for admission only against any "Non-Resident Indian seat" or any supernumerary seat. It is relevant to take note herein that the Non-Resident Indians apart from the seats reserved only for Non-Resident Indians, are also entitled to participate in the selection process for allotment of seats along with the Indian citizens for the remaining seats as well, which benefit was hitherto available to OCI Cardholders by virtue of their parity with NRIs.

However, by presently specifying that the OCI Cardholders would be eligible for only the Non- Resident Indian seat or any supernumerary seat, the right available to the OCI Cardholders is only for the seats which are reserved as NRI quota seats, for which they would have to compete with the NRI candidates for the limited number of seats, for which higher fee structure is also fixed. The proviso thereto makes it clear that the OCI Cardholders shall not be eligible for admission against any seat reserved exclusively for Indian citizens. The provision contained in the impugned portion of the notification dated 04. 03.

2021 would indicate that the OCI Cardholders even if they have settled down in India and have undergone their entire educational course in India but not having renounced the citizenship of a foreign country and not having acquired the citizenship of India will now be denied the opportunity of securing a medical seat in the general pool of Indian citizens including NRIs and will have to compete only for the limited seats available under the NRI quota, which would be a denial of an opportunity of education to such OCI Cardholders which was hitherto available. It is in that view contended that a legitimate expectation of the petitioners herein is being defeated and they are also being discriminated upon due to which there is a violation of Article 14 of the Constitution. 23. In the above backdrop it would be appropriate to refer to the precedents cited and relied upon by the learned counsel for all the parties including 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 SCC 248 Maneka Gandhi vs. Union of India, to contend that unreasonable classification is not permissible, wherein, inter alia, it is held as hereunder; "7. Now, the question immediately arises as to what is the requirement of Article 14 : what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.

We must reiterate here what was pointed out by the majority in E. P. Royappa v. State of Tamil Nadu namely, that "from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14". Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14.

It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. " 25. On the contention relating to the doctrine of non-retrogression the decision inNavtej Singh Johar & Ors. vs. Union of India Thr. Secretary Ministry of Law and Justice(2018) 10 SCC 1 is relied upon, wherein it is observed as hereunder: "199. What the words of Lord Roskill suggest is that it is not only the interpretation of the Constitution which needs to be pragmatic, due to the dynamic nature of a Constitution, but also the legal policy of a particular epoch must be in consonance with the current and the present needs of the society, which are sensible in the prevalent times and at the same time easy to apply. 200. This also gives birth to an equally important role of the State to implement the constitutional rights effectively.

And of course, when we say State, it includes all the three organs, that is, the legislature, the executive as well as the judiciary. The State has to show concerned commitment which would result in concrete ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. action. The State has an obligation to take appropriate measures for the progressive realisation of economic, social and cultural rights. 201. The doctrine of progressive realisation of rights, as a natural corollary, gives birth to the doctrine of non-retrogression. As per this doctrine, there must not be any regression of rights. In a progressive and an ever-improving society, there is no place for retreat. The society has to march ahead. 202. The doctrine of non-retrogression sets forth that the State should not take measures or steps that deliberately lead to retrogression on the enjoyment of rights either under the Constitution or otherwise. " 26. The decision in (1995) 5 SCC 482 LIC Vs.

Consumer Education and Research Centrewas relied on to contendthat every activity of public authority must be informed by reasons and guided by public interest and the exercise of discretion or power by public authority must be judged by that standard. Para 24 and 30 of the decision relied upon is as hereunder: "24. In Dwarkadas Marfatia & Sons v. Board ofTrustees of the Port of Bombay [(1989) 3 SCC 293 :(1989) 2 SCR 751] it was held that the Corporation must act in accordance with certain constitutional conscience and whether they have so acted must be discernible from the conduct of such Corporations. Every activity of public authority must be informed by reasons and guided by the public interest. All exercises of discretion or power by public authority must be judged by that standard.

In that case when the building owned by the port trust was exempted from the Rent Act, on terminating the tenancy for development when possession was sought to be taken, it was challenged under Article 226 that the action of the port trust was arbitrary and no public interest would be served by terminating the tenancy. In that context, this Court held that even in contractual relations the Court cannot ignore that the public authority must have constitutional conscience so that any interpretation put up must be to avoid arbitrary action, lest the authority would be permitted to flourish as imperium in imperio. Whatever be the activity of the public authority, it must meet the test of Article 14 and judicial review strikes an arbitrary action. 30. The contention of the appellants is that the offending clause is a valid classification. The salaried group of lives from the Government, semi-Government or reputed commercial institutions form a class.

With a view to identify the health conditions, the policy was applied to that class of lives. No mandamus would be issued to declare the classification as unconstitutional when it bears reasonable nexus to the object and there is intelligible differentia between the salaried lives and the rest. The High Court, therefore, was wrong in declaring the offending clause as arbitrary violating Article 14. It is true that the appellant is entitled to issue the policy applicable to a particular group or class of lives entitled to avail contract of insurance with the appellant but a class or a group does mean that the classification meets the demand of equality, fairness and justness.

The doctrine of classification is only a subsidiary rule evolved by the courts to give practical content to the doctrine of equality, overemphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality enshrined in Article 14 of the Constitution. The overemphasis on classification would inevitably result in substitution of the doctrine of classification to the doctrine of equality and the Preamble of the Constitution which is an integral part and scheme of the Constitution. Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] ratio extricated it from this moribund and put its elasticity for egalitarian path finder lest the classification would deny equality to the larger segments of the society.

The classification based on employment in Government, semi-Government and reputed commercial firms has the insidious and inevitable effect of excluding lives in vast rural and urban areas engaged in unorganised or self-employed sectors to have life insurance offending Article 14 of the Constitution and socio-economic justice. " 27. Shri K. V. Viswanathan, learned senior counsel while contending that the right which had accrued cannot be taken away and the 'things done' or 'omitted to be done' before such supersession is to be kept in view, has relied on the decision in (1961) 1 SCR 305 Universal Imports Agency & Ans. Vs. Chief Controller of Imports and Exports and Ors. wherein it is held as hereunder: ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. "16. What were the "things done" by the petitioners under the Pondicherry law?

The petitioners in the course of their import trade, having obtained authorization for the foreign exchange through their bankers, entered into firm contracts with foreign dealers on C. I. F. terms. In some cases irrevocable Letters of Credit were opened and in others bank drafts were sent towards the contracts. Under the terms of the contracts the sellers had to ship the goods from various foreign ports and the buyers were to have physical delivery of the goods after they had crossed the customs barrier in India. Pursuant to the terms of the contracts, the sellers placed the goods on board the various ships, some before and others after the merger, and the goods arrived at Pondicherry port after its merger with India. The prices for the goods were paid in full to the foreign sellers and the goods were taken delivery of by the buyers after examining them on arrival.

Before the merger if the Customs Authorities had imposed any restrictions not authorised by law, the affected parties could have enforced the free entry of the goods in a court of law. On the said facts a short question arises whether para 6 of the Order protects the petitioners. While learned counsel for the petitioners contends that "things done" take in not only things done but also their legal consequences, learned counsel for the State contends that, as the goods were not brought into India before the merger, it was not a thing done before the merger and, therefore, would be governed by the enactments specified in the Schedule. It is not necessary to consider in this case whether the concept of import not only takes in the factual bringing of goods into India, but also the entire process of import commencing from the date of the application for permission to import and ending with the crossing of the customs barrier in India.

The words "things done" in para 6 must be reasonably interpreted and, if so interpreted, they can mean not only things done but also the legal consequences flowing therefrom. If the interpretation suggested by the learned counsel for the respondents be accepted, the saving clause would become unnecessary. If what it saves is only the executed contracts i. e. the contracts whereunder the goods have been imported and received by the buyer before the merger, no further protection is necessary as ordinarily no question of enforcement of the contracts under the pre-existing law would arise. The phraseology used is not an innovation but is copied from other statutory clauses. Section 6 of the General clauses Act (10 of 1897) says that unless a different intention appears, the repeal of an Act shall not affect anything duly done or suffered thereunder. So too, the Public Health Act of 1858 (38 & 39 Vict. c.

55) which repealed the Public Health Act of 1848 contained a proviso to Section 343 to the effect that the repeal "shall not affect anything duly done or suffered under the enactment hereby repealed", This proviso came under judicial scrutiny in Queen v. Justices of the WestRiding of Yorkshire [(1876) 1 QBD 220] . There notice was given by a local board of health of intention to make a rate under the Public Health Act, 1848, and amending Acts. Before the notice had expired these Acts were repealed by the Public Health Act, 1875, which contained a saving of "anything duly done" under the repealed enactments, and gave power to make a similar rate upon giving a similar notice. The board, in ignorance of the repeal, made a rate purporting to be made under the repealed Acts. It was contended that as the rate was made after the repealing Act, the notice given under the repealed Act was not valid.

The learned Judges held that as the notice was given before the Act, the making of the rate was also saved by the words "anything duly done" under the repealed enactments. This case illustrates the point that it is not necessary that an impugned thing in itself should have been done before the Act was repealed, but it would be enough if it was integrally connected with and was a legal consequence of a thing done before the said repeal. Under similar circumstances Lindley, L. J. , in Heston and IsleworthUrban District Council v. Grout [(1897) 2 Ch 306]confirmed the validity of the rate made pursuant to a notice issued prior to the repeal. Adverting to the saving clause, the learned Judge tersely states the principle thus at p. 313: "That to my mind preserves that notice and the effect of it". On that principle the court of appeal held that the rate which was the effect of the notice was good. " 28.

The learned senior counsel, further on the principle of legitimate expectation, relied on the decision in (1992) 4 SCC 477 Navjyoti Coop. Group Housing Society and Ors. Vs. Union of India & Ors. wherein it is observed as hereunder: ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. "15. It also appears to us that in any event the new policy decision as contained in the impugned memorandum of January 20, 1990 should not have been implemented without making such change in the existing criterion for allotment known to the Group Housing Societies if necessary by way of a public notice so that they might make proper representation to the concerned authorities for consideration of their viewpoints.

Even assuming that in the absence of any explanation of the expression "first come first served" in Rule 6(vi ) of Nazul Rules there was no statutory requirement to make allotment with reference to date of registration, it has been rightly held, as a matter of fact, by the High Court that prior to the new guideline contained in the memo of January 20, 1990 the principle for allotment had always been on the basis of date of registration and not the date of approval of the list of members. In the brochure issued in 1982 by the DDA even after Gazette notification of Nazul Rules on September 26, 1981 the policy of allotment on the basis of seniority in registration was clearly indicated. In the aforesaid facts, the Group Housing Societies were entitled to 'legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment.

The existence of 'legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the 'legitimate expectation' without some overriding reason of public policy to justify its doing so. In a case of 'legitimate expectation' if the authority proposes to defeat a person's 'legitimate expectation' it should afford him an opportunity to make representations in the matter. In this connection reference may be made to the discussions on 'legitimate expectation' at page 151 of Volume 1(1) of Halsbury's Laws of England , 4th edn. (re-issue). We may also refer to a decision of the House of Lords in Council of Civil Service Unions v. Minister forthe Civil Service [(1984) 3 All ER 935] .

It has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons. 16. It may be indicated here that the doctrine of 'legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such 'legitimate expectation'. Within the conspectus of fair dealing in case of 'legitimate expectation', the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in.

We, have not been shown any compelling reasons taken into consideration by the Central Government to make a departure from the existing policy of allotment with reference to seniority in registration by introducing a new guideline. On the contrary, Mr Jaitley the learned counsel has submitted that the DDA and/or Central Government do not intend to challenge the decision of the High Court and the impugned memorandum of January 20, 1990 has since been withdrawn. We therefore feel that in the facts of the case it was only desirable that before introducing or implementing any change in the guideline for allotment, an opportunity to make representations against the proposed change in the guideline should have been given to the registered Group Housing Societies, if necessary, by way of a public notice. " 29. On behalf of the petitioners the decision to explain the Doctrine of Ultra Vires was also relied in (2007) 13 SCC 673 J. K. Industry Ltd. vs.

Union of India wherein it is held as hereunder: "127. At the outset, we may state that on account of globalisation and socio-economic problems (including income disparities in our economy) the power of delegation has become a constituent element of legislative power as a whole. However, as held in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, SCC at p. 689, subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further bequestioned on the ground that it is inconsistent with the provisions of the Act or that it is contrary tosome other statute applicable on the same subject-matter. Therefore, it has to yield to plenary legislation.

It can also be questioned on the ground that ANUSHKA RENGUNTHWAR & ORS. v. UNION OF INDIA & ORS. it is manifestly arbitrary and unjust. That, any inquiry into its vires must be confined to the grounds on which plenary legislation may be questioned, to the grounds that it is contrary to the statute under which it is made, to the grounds that it is contrary to other statutory provisions or on the ground that it is so patently arbitrary that it cannot be said to be in conformity with the statute. It can also be challenged on the ground that it violates Article 14 of the Constitution. 128. Subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned. A distinction must, however, be made between delegation of a legislative function in which case the question of reasonableness cannot be gone into and the investment by the statute to exercise a particular discretionary power.

In the latter case, the question may be considered on all grounds on which administrative action may be questioned, such as, nonapplication of mind, taking irrelevant matters into consideration, failure to take relevant matters into consideration, etc. A subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account vital facts which expressly or by necessary implication are required to be taken into account by the statute or the Constitution. This can be done on the ground that the subordinate legislation does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19 of the Constitution. However, it may be noted that, a notification issued under a section of the statute which requires it to be laid before Parliament does not make any substantial difference as regards the jurisdiction of the court to pronounce on its validity. " 30. Ms.

Aishwarya Bhati, learned Additional Solicitor General, in seeking to distinguish the above-referred decisions contended that the cases referred to by the learned senior counsel for the petitioner are all in the context of the issues which had arisen in matters relating to Citizens of India against the State/Authorities or when the dispute arose for consideration inter se between the Citizens of India. In that view, it is contended that the petitioner cannot claim protection under Article 14, 19 or 21 of the Constitution of India. Even for claiming any right under Article 14, the same will emerge from Article 19 of the Constitution and as such protection cannot be accorded to foreigners. 31. In addition, the learned Additional Solicitor General, to emphasize that a 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 State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, mod