Case BriefsHigh Courts

Punjab and Haryana High Court: The Division Bench comprising of Harinder Singh Sidhu & Arun Monga, JJ. dismissed the writ petition on the ground that there was no legal infirmity in the action of the State of Punjab to adopt the wider definition of the NRI in the domain of policymaking.

A writ petition was made against Clause 17 of the Notification whereby, definition and scope of Non-Resident Indian (NRI) have been restricted to include only an NRI and/or children of NRI.

The facts of the case were that the petitioner took the National Eligibility cum Entrance Test (for short ‘NEET’) conducted for admission to MBBS/BDS in medical colleges situated all over India including the State of Punjab. The petitioner qualified the cut off marks prescribed in the examination and was eligible to apply for admission in the medical colleges. The petitioner was primarily aggrieved by the action of the State in excluding the first degree relations of NRI and wards thereof from the realm of the definition of ‘NRI’.

Pankaj Bansal, Counsel for the petitioner submits that by restricting the Category I to mean ‘an NRI and/or children of NRI’ results in hostile discrimination towards the students in the State of Punjab. NRI reservation was provided in all the medical colleges of India wherein a wider meaning has been given to word ‘NRI’ by including the first degree relations of NRI and wards of NRI within the meaning of word ‘NRI’. Learned counsel for the petitioner has also emphatically argued that restriction on the scope of the word ‘NRI’ has no reasonable nexus with the objectives sought to be achieved. He submits that if the scope of the definition of NRI is widened then the wider pool of talent would be available and the same will thus advance the requisite merit. The petitioner put reliance on the case of  P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537, wherein the Supreme Court has discussed the definition of NRI.

Rashmi Attri and M.S. Longia, Counsels for the respondents opposed the impugned notification on the ground that there are quite a large number of NRIs and in its wisdom, the State Government had rightly restricted the scope of the definition of NRI to mean either ‘an NRI or children of the NRI’. Enlarging the scope of the same to first degree relatives and/ or the wards of the NRI would open flood gates for the applicants to seek the benefit of NRI quota.

High Court thus opined that purpose of narrowing down the definition of ‘NRI’ vide clause 17, does not miss the very ratio laid down in Inamdar’s case, inasmuch as, it has been clearly laid down by the Apex Court that under the garb of NRI quota less meritorious students who can afford to spend more money get admission even though neither the student is an NRI nor his/ her parents are NRIs.

Thus, the Court was of the opinion that the purpose of restricting the definition is to give weightage only to the genuine cases where the children of those parents who have migrated to other countries to get the benefit of education in their native country. Court further added that “we also do not find any merit in the argument that the narrowing of the scope of the definition of ‘NRI’ by the State is hostile discrimination qua the students of Punjab. It is open for the State Government to make any policy with regard to the residents of the State and no interference is warranted by this Court in the domain of policymaking. It is up to the State to widen or narrow the scope of the definition of ‘NRI’ and such exercise of power would not amount to any discrimination.” Thus the petition was dismissed.[Asmita Kaur v. State of Punjab, 2019 SCC OnLine P&H 937, decided on 26-06-2019]

Call For PapersCase BriefsLaw School News

The National Law School of India Review (NLSIR) is now accepting submissions for its upcoming issue – Volume 31(2). Volume 31(2) will a special issue of the NLSIR and will follow the theme of the XII NLSIR Symposium, i.e., ‘Sovereign-Rights Dichotomy: Exploring Issues of Migration, Refuge and Citizenship’ in the context of India.

Since, this is a special issue of the journal, papers relevant to the above theme, i.e., those engaging with the issues of Migration, Refuge or Citizenship will be considered only. Please send in your submissions before March 31, 2019 in order for them to be considered for our special issue, i.e., Vol. 31(2)

About NLSIR

The NLSIR is the flagship law review of the National Law School of India University, Bangalore, India. The NLSIR is a bi-annual, student edited, peer-reviewed law journal providing incisive legal scholarship on issues that are at the forefront of contemporary legal discourse. In the past 30 years, the NLSIR has regularly featured articles authored by judges of the Indian Supreme Court, senior counsels practicing at the Indian bar, and several renowned academics from national and foreign universities.

The most recent volume of the NLSIR, Vol. 30 will feature contributions by Professor Jonathan Herring, Vice Dean and Professor of law, Faculty of Law, University of Oxford, and Professor Steven Freeland, the Dean of the School of Law and Professor of International Law at Western Sydney University, Australia, among several others. Moreover, NLSIR has the unique distinction of being the only Indian student-run law journal to be cited twice by the Supreme Court of India, with the latest one in the landmark judgment in Justice K.S. Puttaswamy v. Union of India. NLSIR has also recently been cited in Justice R. S. Bachawat’s Law of Arbitration and Conciliation, a leading treatise on arbitration law in India.

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Submissions are accepted for the following categories:

  1. Long Articles:Between 5,000 and 10,000 words. Papers in this category are expected to engage with the theme and literature comprehensively, and offer an innovative reassessment of the current understanding of that theme. Purely theoretical pieces are also welcome.
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All word limits are exclusive of footnotes. The journal is flexible regarding the word count depending on the quality of the submission. Pieces in any of the above categories with relevance to India or Indian law are particularly welcome. This, however, is not a pre-requisite.

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Warm regards,

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OP. ED.

Articles 10[1] and 11[2] of the Constitution of India permits Parliament to make provisions in the matters of citizenship. Using this power Parliament had enacted the Citizenship Act, 1955 and a special law for Assam titled the Immigrants (Expulsion from Assam) Act, 1950.

There was a massive influx of illegal immigrants from Bangladesh (formerly East Pakistan) into the State of Assam. This lead to social and political conflict in the border State of Assam. In 1985, Assam Accord was signed between the Government and leaders of Assam agitation. It brought the first amendment of the Citizenship Act[3] and thereby Section 6-A was inserted in the Act.

Section 6-A divided the illegal immigrants of Indian origin (i.e. those whose parents or grand-parents were born in undivided India) into three groups:

  1. Those who entered into the State before 1966 were deemed to be the citizen of India.
  2. Those who entered into the State between 1966 to 25-3-1971 (official date of announcement of the Bangladesh war) were deemed to be citizens but their names were deleted from the electoral rolls. This was done because the political parties in order to increase their vote bank were giving citizenship arbitrarily to every immigrant without NRC (National Register of Citizens).
  3. Those who entered into the State after 1971 were to be detected and deported in accordance with the law.

To detect the illegal immigrants in the State of Assam, Parliament passed the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act), two years before the Assam Accord. Under the Act the Government framed the Illegal Migrants (Determination by Tribunals) Rules, 1984 (IMDT Rules). The Act and the Rules taken together, made some departure from the procedure under Foreigners Act, 1946 and Foreigners (Tribunals) Order, 1964 which was applicable for whole India.

IMDT Act and Rules were challenged before the Supreme Court in Sarbananda Sonowal v. Union of India[4] and the Court held the Act and the Rules to be unconstitutional. Thereafter, the Tribunals under IMDT Act ceased to function and statutory regime reverted to Section 6-A of the Citizenship Act, the Foreigners Act and the Foreigners (Tribunals) Order.

Section 6-A of the Citizenship Act was challenged before the Supreme Court in Assam Sanmilita Mahasangha v. Union of India[5]. A two-Judge Bench of the Supreme Court (Justice Ranjan Gogoi and Justice R.F. Nariman) framed 13 questions of law and passed it to Constitution Bench under a referral order under Article 145(3)[6]. The first issue raised in the referral order is:

Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section 6-A of the Citizenship Act inasmuch as Section 6-A, in prescribing a cut-off date different from the cut-off date prescribed in Article 6, can do so without a “variation” of Article 6 itself; regard, in particular, being had to the phraseology of Article 4(2) read with Article 368(1)?

Under Article 6 of the Constitution, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India if he, or either of his parents or any of his grandparents, was born in undivided India and in addition, has fulfilled either of the following two conditions:

  1. in case he migrated to India before 19-7-1948[7], he had been ordinarily resident in India since the date of his migration; or
  2. in case he migrated on or after 19-7-1948, he had been registered as a citizen of India.

A person could be so registered only if he had been resident in India for at least 6 months preceding the date of application for registration.

The migration envisaged in Article 6 only means coming to India from outside and it must have taken place before, and not after the commencement of the Constitution.

Section 6-A of the Citizenship Act provides cut-off date for the entry into the State of Assam different from that provided in Article 6 of the Constitution. Thus, there posed a conflict between Article 6 and Section 6-A as Section 6-A is said to be contradictory to Article 6.

The main point to be considered is that whether Articles 10 and 11 of the Constitution empowers Parliament to make provisions contrary to the provision of the Constitution without an amendment to the constitution itself.

Section 6-A was inserted by an amendment to the Citizenship Act but there was no amendment of the Constitution w.r.t. variation of Article 6 for the enforcement of Section 6-A.

Articles 2 and 3 of the Constitution states about the territory. If we go by literal interpretation of the word “territory” it means the geographical area under the jurisdiction of a sovereign State. State includes both territory as well as population. Any law made for a territory is directly related to the people residing over the territory. There can be no existence of a territory without the existence of living flesh in that territory. Thus, it may be said that territory does not only include the land but it consists of all living creatures residing in the territory.

A territory is a combination of both land and living creatures residing over there. Article 6 provides for rights of the citizenships of certain persons who have migrated to the territory of India from the territory now included in Pakistan. Articles 2 and 3 talks about territory w.r.t. land. As territory includes both land as well as living creatures, it can be said that Article 6 stands on the same footing as Articles 2 and 3.

Since Articles 2 and 3 are immunised from the constitutional amendment under Article 368(1)[8] by virtue of Article 4(2) then Article 6 shall also come under the scope of Article 4(2) and shall be immunised from the amendment under Article 368(1) of the Constitution. If this interpretation is true it may be said that Article 6 of the Constitution need not to be amended and no such law made thereunder shall be deemed to be an amendment of the Constitution.

Section 6-A of the Citizenship Act may be said to be an expansion of the Article 6 of the Constitution considering the socio-economic conditions of the country. And in enforcement of Section 6-A there is no requirement of the amendment of the Constitution.

———

*Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1.

Ekta Rai is a first year student at National University of Study and Research in Law, Ranchi.

[1]  Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.

[2]  Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to acquisition and termination of citizenship and all other matters relating to citizenship.

[3]  Citizenship (Amendment) Act, 1986.

[4]  (2005) 5 SCC 665.

[5]  (2015) 3 SCC 1.

[6] The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.

[7]  On this date, the influx from Pakistan (Control) Ordinance introduced a permit system to control the admission into India of persons from West Pakistan.

[8]  Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

Case BriefsHigh Courts

Bombay High Court: A Division Bench comprising of B.R. Gavai and Bharati. H.Dangre, JJ., allowed a petition filed seeking a transfer from a medical college in Miraj to a college in Mumbai/Thane.

The petitioner was aggrieved by the rejection of her application for transfer from Government Medical College, Miraj to any Government Medical College in Mumbai or Thane. The petitioner sought transfer on the ground that she suffered from Allergic Bronchitis Bronchial Asthma and need to be treated in Mumbai. It was undisputed fact that one seat was vacant in Rajeev Gandhi Medical College, Thane (RGMC). It was also undisputed that she had obtained all the documents (no objection certificates) from concerned authorities. It was contended by the respondent State that the petitioner could not be granted migration as the seat in RGMC was not a clear vacancy as per the information brochure of the State Government since it arose due to the migration of a student from the said seat.

The High Court perused the record and observed that the petitioner had all the required documents necessary under MCI Regulations and also Regulations issued by Vice Chancellor of the University. The Court noted the submission made by the respondent State but only to be rejected. The Court categorically observed, the brochure issued by the State Government at most could be an administrative instruction and could not have an overriding effect over the Regulations framed by MCI which were in nature of subordinate legislation. The Court found that the petitioner had complied with all the technical requirements as per MCI Regulations and the only question left for consideration was whether the transfer was sought by the petitioner on genuine grounds. The High Court was of the opinion that the petitioner had a genuine case for seeking a transfer as she was suffering from an ailment which required proper medical attention. Accordingly, the petition was allowed and the State was directed to approve petitioner’s case for transfer to RGMC, Thane. [Pankti M. Pancholi v.  State of Maharashtra,2018 SCC OnLine Bom 1178, dated 04-05-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench comprising of R.S. Jha and A.K. Joshi, JJ. held that Dental Council of India (D.C.I.) and Medical Council of India (M.C.I.) should not give any undue benefit to relatives or children of powerful authorities and shall grant it to those who falls within the parameters constructed under regulations of M.C.I. and D.C.I.

Petitioners stated that D.C.I. and M.C.I. have granted migration in “undeserving cases” such as to the children and relatives of I.A.S., I.P.S. officers and ministers and denied it to others. The Court disposed off the petition stating that the instances included by petitioners are “stale” and “old” and therefore no decision in respect to order of migration can be given by court. It further directed M.C.I. and D.C.I. to strictly adhere by the regulations before granting migration. [Dr. Anand Rai v. Medical Council of India,  2017 SCC OnLine MP 799, decided on 17.05.2017]