Public Interest Litigation by S.Basavaraj, Advocate and Member, Karnataka State Bar Council challenges establishment of caste based Corporations and bodies. The bodies whose establishment are challenged are.
1. Karnataka Maratha Development Authority, c/o Backward Classes Welfare department, VidhanaSoudha, Dr. Ambedkar Road, Bangalore 560001
4. KARNATAKA VISHWAKARMACOMMUNITIES DEVELOPMENT CORPORATION LIMITED, 4th floor, DevarajUrs Bhavan 16/d, Miller Tank Bed Area, Vasanthanagar, Bangalore 560052
5.Karnataka State CHRISTIAN DEVELOPMENT BOARD, Karnataka Minorities Development Corporation Ltd, ‘Vishveswarayya Centre’, 12thFloor, Main Tower, Dr Ambedkar Rd, Ambedkar Veedhi, Vasanth Nagar, Bengaluru, Karnataka 560001
6. KARNATAKA BRAHMIN DEVELOPMENT BOARD, No.1 4/3, Annexe Building, 3rd floor, Sri Aravinda Bhavan, Mythic Society, Bengaluru- 560001
7. Karnataka Kadugolla Development Authority c/o Backward Classes Welfare department, VidhanaSoudha, Dr. Ambedkar Road, Bangalore 560001
The interim prayer seeks a direction to the State Government to submit details of all caste based bodies established in the State of Karnataka and the financial contribution made to them.
Public Interest Litigation by S.Basavaraj, Advocate and Member, Karnataka State Bar Council challenges establishment of caste based Corporations and bodies. The bodies whose establishment are challenged are.
1. Karnataka Maratha Development Authority, c/o Backward Classes Welfare department, VidhanaSoudha, Dr. Ambedkar Road, Bangalore 560001
4. KARNATAKA VISHWAKARMACOMMUNITIES DEVELOPMENT CORPORATION LIMITED, 4th floor, DevarajUrs Bhavan 16/d, Miller Tank Bed Area, Vasanthanagar, Bangalore 560052
5.Karnataka State CHRISTIAN DEVELOPMENT BOARD, Karnataka Minorities Development Corporation Ltd, ‘Vishveswarayya Centre’, 12thFloor, Main Tower, Dr Ambedkar Rd, Ambedkar Veedhi, Vasanth Nagar, Bengaluru, Karnataka 560001
6. KARNATAKA BRAHMIN DEVELOPMENT BOARD, No.1 4/3, Annexe Building, 3rd floor, Sri Aravinda Bhavan, Mythic Society, Bengaluru- 560001
7. Karnataka Kadugolla Development Authority c/o Backward Classes Welfare department, VidhanaSoudha, Dr. Ambedkar Road, Bangalore 560001
The interim prayer seeks a direction to the State Government to submit details of all caste based bodies established in the State of Karnataka and the financial contribution made to them.
Paragraph 16. Admittedly, both the lease deeds are neither registered nor sufficiently stamped as required under the Karnataka Stamp Act, 1957. Admittedly, the Registrar (Judicial) of the High Court of Karnataka had submitted a report to the High Court pointing out, that the document of 1997 executed/entered into between the parties was a lease deed and not an agreement to lease and passed an order directing Respondents 1 and 2 to pay deficit stamp duty and penalty of Rs 1,01,56,388 (Rupees one crore one lakh fifty-six thousand three hundred and eighty-eight only). It is also an admitted fact, that Respondents 1 and 2 have not complied with the said directions and have not paid the deficit stamp duty and penalty. In this background, a question that would arise for consideration is, as to whether Clause 36 in the lease deed dated 12-3-1997 could be acted upon to enforce the arbitration clause contained therein.
17. The issue is no longer res integra. This Court in SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd.3 had occasion to consider the provisions which are in pari materia with the provisions of the Karnataka Stamp Act, 1957. The relevant paragraphs are as under: (SCC pp. 73-74, paras 17-21)
“17. What if an arbitration agreement is contained in an unregistered (but compulsorily registerable) instrument which is not duly stamped? To find an answer, it may be necessary to refer to the provisions of the Stamp Act, 1899 (“the Stamp Act”, for short). Section 33 of the Stamp Act relates to examination and impounding of instruments. The relevant portion thereof is extracted below:
‘33. Examination and impounding of instruments.—(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed:’
18. Section 35 of the Stamp Act provides that instruments not duly stamped are inadmissible in evidence and cannot be acted upon. The relevant portion of the said section is extracted below:
‘35. Instruments not duly stamped inadmissible in evidence, etc.—No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
Provided that—
(a) any such instrument shall be admitted in evidence on payment of the duty with which the same is chargeable or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;’
19. Having regard to Section 35 of the Stamp Act, unless the stamp duty and penalty due in respect of the instrument is paid, the court cannot act upon the instrument, which means that it cannot act upon the arbitration agreement also which is part of the instrument. Section 35 of the Stamp Act is distinct and different from Section 49 of the Registration Act in regard to an unregistered document. Section 35 of the Stamp Act, does not contain a proviso like Section 49 of the Registration Act enabling the instrument to be used to establish a collateral transaction.
20. The Scheme for Appointment of Arbitrators by the Chief Justice of Gauhati High Court, 1996 requires an application under Section 11 of the Act to be accompanied by the original arbitration agreement or a duly certified copy thereof. In fact, such a requirement is found in the scheme/rules of almost all the High Courts. If what is produced is a certified copy of the agreement/contract/instrument containing the arbitration clause, it should disclose the stamp duty that has been paid on the original. Section 33 casts a duty upon every court, that is, a person having by law authority to receive evidence (as also every arbitrator who is a person having by consent of parties, authority to receive evidence) before whom an unregistered instrument chargeable with duty is produced, to examine the instrument in order to ascertain whether it is duly stamped. If the court comes to the conclusion that the instrument is not duly stamped, it has to impound the document and deal with it as per Section 38 of the Stamp Act.
21. Therefore, when a lease deed or any other instrument is relied upon as contending the arbitration agreement, the court should consider at the outset, whether an objection in that behalf is raised or not, whether the document is properly stamped. If it comes to the conclusion that it is not properly stamped, it should be impounded and dealt with in the manner specified in Section 38 of the Stamp Act. The court cannot act upon such a document or the arbitration clause therein. But if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, the document can be acted upon or admitted in evidence.”
18. It can thus clearly be seen, that this Court has in unequivocal terms held, that when a lease deed or any other instrument is relied upon as containing the arbitration agreement, the court is required to consider at the outset, whether the document is properly stamped or not. It has been held, that even when an objection in that behalf is not raised, it is the duty of the court to consider the issue. It has further been held, that if the court comes to the conclusion, that the instrument is not properly stamped, it should be impounded and dealt with, in the manner specified in Section 38 of the Stamp Act, 1899. It has also been held, that the court cannot act upon such a document or the arbitration clause therein. However, if the deficit duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, 1899, the document can be acted upon or admitted in evidence. It is needless to state, that the provisions that fell for consideration before this Court are analogous with the provisions of Sections 33 and 34 of the Karnataka Stamp Act, 1957. In this view of the matter, we are of the considered view, that in view of the law laid down in SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 SCC 66, that the lease deed containing the arbitration clause which is required to be duly stamped, was not sufficiently stamped and though the Registrar (Judicial) had directed Respondents 1 and 2 to pay deficit stamp duty and penalty of Rs 1,01,56,388 (Rupees one crore one lakh fifty-six thousand three hundred and eighty-eight only), the respondents failed to do so, the High Court has erred in relying on the said lease dated 12-3-1997.
Paragraph 15. In SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 SCC 66, this Court was confronted with an arbitration clause, namely, Clause 35 of a lease deed dated 21-12-2006 for a term of 30 years in regard to two tea estates. The lease deed was neither stamped nor registered. Para 9 of the judgment set out the questions that arose for consideration as follows: (SCC p. 71)
“9. On the contentions urged the following questions arise for consideration:
(i) Whether an arbitration agreement contained in an unregistered (but compulsorily registerable) instrument is valid and enforceable?
(ii) Whether an arbitration agreement in an unregistered instrument which is not duly stamped, is valid and enforceable?
(iii) Whether there is an arbitration agreement between the appellant and the respondent and whether an arbitrator should be appointed?”
16. When it came to the question of an arbitration clause contained in an unregistered lease deed, this Court held: (SMS Tea Estates2, SCC pp. 72-73, paras 12-16)
“12. When a contract contains an arbitration agreement, it is a collateral term relating to the resolution of disputes, unrelated to the performance of the contract. It is as if two contracts—one in regard to the substantive terms of the main contract and the other relating to resolution of disputes—had been rolled into one, for purposes of convenience. An arbitration clause is therefore an agreement independent of the other terms of the contract or the instrument. Resultantly, even if the contract or its performance is terminated or comes to an end on account of repudiation, frustration or breach of contract, the arbitration agreement would survive for the purpose of resolution of disputes arising under or in connection with the contract.
13. Similarly, when an instrument or deed of transfer (or a document affecting immovable property) contains an arbitration agreement, it is a collateral term relating to resolution of disputes, unrelated to the transfer or transaction affecting the immovable property. It is as if two documents—one affecting the immovable property requiring registration and the other relating to resolution of disputes which is not compulsorily registerable—are rolled into a single instrument. Therefore, even if a deed of transfer of immovable property is challenged as not valid or enforceable, the arbitration agreement would remain unaffected for the purpose of resolution of disputes arising with reference to the deed of transfer.
15. But where the contract or instrument is voidable at the option of a party (as for example under Section 19 of the Contract Act, 1872), the invalidity that attaches itself to the main agreement may also attach itself to the arbitration agreement, if the reasons which make the main agreement voidable, exist in relation to the making of the arbitration agreement also. For example, if a person is made to sign an agreement to sell his property under threat of physical harm or threat to life, and the said person repudiates the agreement on that ground, not only the agreement for sale, but any arbitration agreement therein will not be binding.
16. An arbitration agreement does not require registration under the Registration Act. Even if it is found as one of the clauses in a contract or instrument, it is an independent agreement to refer the disputes to arbitration, which is independent of the main contract or instrument. Therefore having regard to the proviso to Section 49 of the Registration Act read with Section 16(1)(a) of the Act, an arbitration agreement in an unregistered but compulsorily registerable document can be acted upon and enforced for the purpose of dispute resolution by arbitration.”
Relevant paragraphs: Facts: Whilst Execution Case is being processed, some initial steps having been taken for levying enforcement of the award in question, learned Judge has employed some arguably intemperate language in his orders reflecting on the professional conduct of learned counsel for the petitioners who is a senior member having a considerable standing at the Bar; therefore, petitioners are knocking at the doors of the writ court seeking expunction of the said “adverse observations”.
5. Reproducing the text of the said three orders may not be advisable. Suffice it to say that, judges should not be too sensitive in the conduct of court proceedings or to the comments of the onlookers; in any circumstance, they are not expected to ink their orders with a pen dipped in acid either; cause of judicial process is served more by restraint of unpleasant expressions than otherwise; if the court orders are constructed with avoidably pungent words, the stream of justice runs the risk of being tainted as ‘impure’.
“In its widest sense, advocacy is the art of convincing others, that is to say, the art of persuasion … In its legal context, advocacy is the art of conducting cases in court, both by argument and by the manner of bringing out the evidence, so as to convince the court or jury …For members of the bar, who make a practice of appearing in court, advocacy is of first importance and ranks at any rate on an equal level with a knowledge of the law…” writes John Munkman in “The Technique of Advocacy”, LexixNexis Butterworks, London, 1991 Edn.; at times persons associated with adjudicatory process exhibit more emotion than what is normal, for inscrutable reasons; perhaps ‘chimp’ hidden in humans needs no instigation to act and therefore has to be handled tactfully; prudence warrants that all stakeholders in adjudication relegate their emotions to the backseat so that the purity of judicial process is maintained; more is not necessary to elaborate.
7. It hardly needs to be reiterated that the Bar and the Bench being two inseparable wheels of the same chariot, have to move shoulder by shoulder, each being complementary and supportive to the other, the ‘bar’ in between, notwithstanding; even if the submissions of the counsel are, at times, not couched in a pleasant language, a judge is expected not to loose his cool in his expression, be it oral or in writing; efficacy of the orders can be maintained sans acidity in the language employed.
8. The language used in the subject orders though accords with the common usage, falls a little short of the high standards fixed by the judicial traditions; the tenor of the said orders appears to cast aspersion on the professional conduct of the counsel and therefore needs to be toned down, consistent with the majesty of the Institution of Judiciary. In view of the above, although impugned orders are sustained in terms of their effect & efficacy, there being no challenge thereto, the text by which they are structured shall be read down and the observations therein casting aspersion on the professional conduct of the counsel for the petitioners, shall be treated as having been expunged from the record. It hardly needs to be stated that nothing in this judgment shall be construed as suggesting even remotely anything adverse against the learned Judge of the court below or the counsel for the petitioners.
Relevant paragraphs: Facts: Whilst Execution Case is being processed, some initial steps having been taken for levying enforcement of the award in question, learned Judge has employed some arguably intemperate language in his orders reflecting on the professional conduct of learned counsel for the petitioners who is a senior member having a considerable standing at the Bar; therefore, petitioners are knocking at the doors of the writ court seeking expunction of the said “adverse observations”.
5. Reproducing the text of the said three orders may not be advisable. Suffice it to say that, judges should not be too sensitive in the conduct of court proceedings or to the comments of the onlookers; in any circumstance, they are not expected to ink their orders with a pen dipped in acid either; cause of judicial process is served more by restraint of unpleasant expressions than otherwise; if the court orders are constructed with avoidably pungent words, the stream of justice runs the risk of being tainted as ‘impure’.
“In its widest sense, advocacy is the art of convincing others, that is to say, the art of persuasion … In its legal context, advocacy is the art of conducting cases in court, both by argument and by the manner of bringing out the evidence, so as to convince the court or jury …For members of the bar, who make a practice of appearing in court, advocacy is of first importance and ranks at any rate on an equal level with a knowledge of the law…” writes John Munkman in “The Technique of Advocacy”, LexixNexis Butterworks, London, 1991 Edn.; at times persons associated with adjudicatory process exhibit more emotion than what is normal, for inscrutable reasons; perhaps ‘chimp’ hidden in humans needs no instigation to act and therefore has to be handled tactfully; prudence warrants that all stakeholders in adjudication relegate their emotions to the backseat so that the purity of judicial process is maintained; more is not necessary to elaborate.
7. It hardly needs to be reiterated that the Bar and the Bench being two inseparable wheels of the same chariot, have to move shoulder by shoulder, each being complementary and supportive to the other, the ‘bar’ in between, notwithstanding; even if the submissions of the counsel are, at times, not couched in a pleasant language, a judge is expected not to loose his cool in his expression, be it oral or in writing; efficacy of the orders can be maintained sans acidity in the language employed.
8. The language used in the subject orders though accords with the common usage, falls a little short of the high standards fixed by the judicial traditions; the tenor of the said orders appears to cast aspersion on the professional conduct of the counsel and therefore needs to be toned down, consistent with the majesty of the Institution of Judiciary. In view of the above, although impugned orders are sustained in terms of their effect & efficacy, there being no challenge thereto, the text by which they are structured shall be read down and the observations therein casting aspersion on the professional conduct of the counsel for the petitioners, shall be treated as having been expunged from the record. It hardly needs to be stated that nothing in this judgment shall be construed as suggesting even remotely anything adverse against the learned Judge of the court below or the counsel for the petitioners.
Relevant paragraphs:“Half the world; and not even half the chance” is the cry of the petitioner in this petition on being denied consideration for appointment on compassionate ground on the death of her father on the score that she is “a married daughter”.
9. “Whether Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 are ultravires the Constitution for it offends Article 14 of the Constitution of India?”
10. It is by now a well settled principle that object of compassionate appointment is to help the family tied over the crisis that befalls them on the death of the sole breadwinner of the family. It is given, in a given circumstance, so that the family will not be put to jeopardy by being driven to impecuniosities and condemned by penury. It is for this reason the emphasis on appointment on compassionate grounds is immediacy of appointment. This is the principle that is laid down in plethora of judgments of the Apex Court interpreting the need, benefit and its limitations.
12.1 & 12.2 Article 14 of the Constitution of India prohibits the State from denying any person equality before the law or equal protection of the laws. Article 16 is of application of general Rule of equality as laid down in Article 14 with special reference to opportunity for appointment and employment under the State. Article 15(1) prohibits discrimination on the ground of religion, race, caste, sex or place of birth. It is an extension of Article 14, which expresses application of principle of equality. Therefore, no citizen shall be discriminated on the grounds of race, caste, sex or place of birth religion. Article 16 takes its root from Article 14 and ensures equality of opportunity in matters of employment under the State. Therefore, the fundamental right to equality means that persons in like situations under like circumstances should be treated alike. Article 14 of the Constitution of India ensures equality among equals and its main object is to protect persons similarly placed against discriminatory treatment. The equality before law guaranteed under Articles 14, 15 and 16 is a constitutional admonition against both the legislative and executive organs of the State, neither the legislature nor the Rule making authority can make a law or a Rule which is violative of these articles.
12.3 The case of the petitioner and the issue raising a challenge to the constitutional validity of the provision relating to appointment on compassionate grounds will have to be tested on the bedrock of the purport of the aforesaid articles.
14.5 It is trite that Constitution and its interpretation grows according to the living needs of the citizens. It is dynamic and not static. The interpretation of law has always undergone a change with changing times. If the offending provision is left as it is, it would be putting the clock back from where the law has progressed over the years.
14.6 The case at hand is a classic example of law being anachronistic as in terms of the Rules, petitioner applies for compassionate appointment when the son declines the same on the ground that he is not interested. The Rule gives such a liberty to the son to even deny the benefit on the ground that he is not interested. The son of the deceased employee in the case at hand declines to accept appointment on the ground that he is not interested. The daughter is denied on the score that she is married. Therefore, the Rule which declines such a benefit to a daughter merely on the ground that she is married is per se discriminatory.
HELD: Exclusion of married daughters from the ambit of expression ‘family’ in Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 is illegal and unconstitutional being violative of Articles 14 and 15 of the Constitution.Word “unmarried” in Rule 2(1)(a)(i), Rule 2(1)(b) and Rule 3(2)(i)(c) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996 is struck down.
The High Court of Karnataka, (Justice B.V. Nagarathna and Justice N.S. Sanjay Gowda), while quashing Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006, as amended by Karnataka Act No.22 of 2017, to the extent it includes the ‘Overseas Citizens of India’ or ‘Overseas Citizens of India Cardholders’ within the definition of “Non-resident Indian’ quotes Sanskrit Shloka ‘Vasudaiva Kutumbakam’ i.e. world is one family.
The original verse appears in Chapter 6 of Maha Upanishad. Also found in the Rig Veda, it is considered the most important moral value in the Indian society.This verse of is engraved in the entrance hall of the Parliament of India.
See case details below.
Pranav Bajpe and others vs The State of Karnataka and others. Writ Petition 27761/2019 and connected matters decided on 9 December 2020.
Relevant paragraphs: Challenge is to Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institutions Rules, 2006 made under The Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984 and Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission and Determination of Fee) Act, 2006 insofar as it inserts the words ‘and includes persons of Indian origin and overseas citizen of India’ in the definition of “Non-resident Indian” as being repugnant to the provisions of the Citizenship Act, 1955.
16. Single Judge (Justice Krishna Dixit) conclusions:
(i) On the question whether the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act is repugnant to 2009 Notification of Central Government, learned Single Judge considered the definition of Non- Resident Indian under Section 2(1)(n) of 2006 Act in light of Central Government Notification dated 05/01/2009 and the earlier Notification dated 11/04/2005 and held that a OCI Cardholder cannot be equated to a Non-Resident Indian in the matter of admission to professional colleges by an interpretation of the aforesaid two Notifications.
(ii) On the question whether impugned Section 2(1)(n) of 2006 Act is unconstitutional because of lack of legislative competence of the State Legislature, the learned Single Judge analysed Section 7A and 7B of the Citizenship Act and held that the he Notification of 2005 and 2009 impugned Section 2(1)(n) and 2(1)(l) of 2006 Act and Rule 5 of 2006 Rules and therefore were not enforceable.
(iii) Section 7B(1) of Citizenship Act deals with OCI card holders who are not citizens of India. That Section 7B(1) of the Citizenship Act delegates power for issuance of Notifications granting rights to OCI card holders. That the said legislation is traceable to Entry-17 of List-I of VII Schedule of the Constitution which deals with “Citizenship, Naturalization and Aliens”. Therefore, on the strength of the said entry in List-I, the Central Government is empowered to grant various rights to OCI card holders including educational rights. When such rights are granted in the matter of education to OCI card holders, the State Legislature has no competence to legislate on the specific educational rights granted by the Central Government by a Notification issued under Section 7B of Citizenship Act. Therefore, any amendment made to the Karnataka Act and Rules restricting the rights granted to the OCI card holders in the matter of education would be repugnant as the doctrine of ‘occupied field’ would apply under Article 254 of the Constitution.
(iv) On the question whether Rule 5 of 2006 Rules prescribing ‘citizenship’ as a condition for availing Government seats is unenforceable against OCI card holder is concerned, the learned Single Judge referred to Rule 5 of 2006 Rules which prescribes that Indian Citizenship is a sine qua non for any student to lay claim for ‘Government Seats’ which is defined under Rule 2(1)(l) of 2006 Rules, would mean that the rights granted under 2009 Notification under Section 7B(1) of the Citizenship Act would be defeated.
(v) Also, the rights that are available under 2005 Notification and further under 2009 Notification issued by the Central Government under Section 7B(1) of Citizenship Act cannot be diminished or nullified by Rule 5 of the 2006 Rules. There is repugnance between Rule 5 of 2006 Rules with the Notifications of 2005 and 2009. Therefore, Rule 5 cannot be enforced against OCI cardholders, that it can be enforced against other foreigners who are not in any case, the petitioners. This is because Rule 5 of 2006 Rules is relatable to Entry 25 of List-III which deals with the subject-education which is in the Concurrent List and the principles of repugnancy under Article 254 of the Constitution would apply.
(vi) On the question whether the OCI cardholders are Indian citizens, learned Single Judge held that they are all ‘foreigners’, to mean a person who is not a citizen of India, as per the definition under Section 2(a) of the Foreigners Act, 1946.
(vii) On the stand of the Central Government as to educational rights to OCI cardholders, reference was made to memo dated 18/03/2019, submitted on behalf of the Central Government and learned Single Judge observed that the said clarification is in conflict with the interpretation of Notification of 2005 and 2009. That on the one hand, the Notification of Central Government granting educational rights to OCI cardholders and the conference of such rights, cannot be made illusory by the State enactment or Rule. The State law cannot take away the rights granted by the Central Government to the OCI cardholders under Section 7B of the Citizenship Act through the Notification of 2005 and 2009. According to the learned Single Judge, the expression “in pursuance of the provisions contained in the relevant Acts” in paragraph “b” of the 2009 Notification cannot be construed to mean State law which has the effect of curtailing the effect of the rights granted to the OCI cardholders by the Central Government.
49. The Notifications issued by the Central Government under Section 7B of the Citizenship Act, is a statute enacted by the Parliament, while the State law is under Entry 25 of List III of the Concurrent List, which deals on the subject ‘education’.
60. In view of the aforesaid discussion, the expression “citizen” in Rule 5 of 2006 Rules and the expression “Non-Resident Indian” to include OCI cardholders under 2006 Act, both of the State Government, in juxtaposition with Central Government Notifications of 11/04/2005 and 05/01/2009 in the matter of eligibility of OCI cardholders to appear for All-India Pre- Medical Test and to make them eligible for admission in pursuance of the provisions contained in relevant Acts (State Acts) i.e., Medical, Dental, Engineering and such other courses, would have to be considered.
71. …The petitioners in the instant case are all OCI Cardholders who were minors at the time of filing the petitions. Such of those minor OCI Cardholders who are born subsequent to 10/12/1992 to either of whose parents who was a citizen of India at the time of their birth, are conferred citizenship of India by descent. This is evident on a reading of Section 4(1)(b) read with Section 4(1A) of the Citizenship Act, as a minor who is a citizen of India by virtue of Section 4(1)(b) by descent and is also a citizen of any other country, such as OCI Cardholder as per Section 7A(1)(c), shall cease to be a citizen of India if he either renounces his citizenship on attaining full age or even if he does not renounce his citizenship or nationality of another country within six months of attaining the full age. Therefore, the status of minor children of citizens of India is protected by an amendment made to Section 4 of the Citizenship Act by insertion of Section 4(1A).
HELD: (i) …Section 2(1)(n) of the Karnataka Professional Educational Institutions (Regulation of Admission & Determination of Fee) Act, 2006, as amended by Karnataka Act No.22 of 2017, to the extent it includes the ‘Overseas Citizens of India’ or ‘Overseas Citizens of India Cardholders’ within the definition of “Non-resident Indian” is quashed;
(ii) The impugned Rule 5 of the Karnataka Selection of Candidates for Admission to Government Seats in Professional Educational Institution Rules, 2006, to the extent it prescribes Indian Citizenship, is interpreted so as to include within the scope of the expression ‘Citizen’,OCI Cardholders as per Section 4 of the Citizenship Act and as per Notification dated 05/01/2009 issued under Section 7B of the said Act;
(iii) The writ of Mandamus issued by the learned Single Judge directing the Respondent-State and the Respondent-Karnataka Examinations Authority to permit the petitioners (as per their choice) to register for CET-2019 as per the Notification dated 31/01/2019 issued by the Respondent-Karnataka Examinations Authority is confirmed. Further, the aforesaid Authority is directed to permit their participation in the ensuing counseling of CET- 2020 or subsequent years, for selection and allotment of seats in BE/B.Tech/B.Arch., or such other professional courses in Government Colleges, Private Aided/Un-aided Colleges/ educational institutions for the Academic Year 2019-2020 on the basis of their relative merit and ranking in the imminent CET-2020 or subsequent years;
(iv)Insofar as MBBS/BDS courses are concerned, NEET Scheme shall apply for the Academic Years 2019- 20 as well as 2020-21 and a writ of mandamus is issued directing the respondent-State and respondent-Karnataka Examinations Authority to permit the petitioners and similarly situate candidates i.e., OCI Cardholders to register and to participate in the ensuing counseling being held for selection and allotment of seats for the Academic Year 2020-21 and subsequent years, on the basis of their relative merit and ranking;
(v) The Respondent-Government and the Respondent- Karnataka Examinations Authority shall take all steps as are necessary to facilitate and effectuate the aforesaid directions, forthwith and without brooking any delay in the matter, keeping in view CET-2020 or subsequent years.
Daksha Legal 