Delhi High Court
Karm Kumar vs Union Of India & Ors on 3 August, 2010
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P. (C) 4148/2010 & CMs 8243, 8276/2010
Reserved on: 21st July 2010
Decision on: 3rd August 2010
KARM KUMAR ..... Petitioner
Through: Ms. Roma Bhagat, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. A.S. Chandhiok, ASG with
Mr. Jatan Singh, Mr. Ashok Singh,
Ms. Vibha Dhawan, Mr. Rajshekhar Rao and
Mr. Karan Lahiri, Advocates for R-1 to 4/UoI.
Mr. Hari Shankar K. with
Mr. Vikas Singh Jangra, Advocate
for R-5/SRFI.
W.P.(C) 4263/2010 & CM 8454/2010
ROBERT BLANCHETTE ..... Petitioner
Through: Ms. Roma Bhagat, Advocate
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. A.S. Chandhiok, ASG with
Mr. Jatan Singh, Mr. Ashok Singh, Ms. Vibha
Dhawan, Mr. Rajshekhar Rao and
Mr. Karan Lahiri, Advocates for UoI.
Mr. Hari Shankar K. with
Mr. Vikas Singh Jangra, Advocate for SRFI.
CORAM: JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes
JUDGMENT
03.08.2010
The Issue
1. Can an Overseas Citizen of India (‗OCI') or a Person of Indian
Origin (‗PIO') claim a right to represent India in an international
sporting event? This is the question that arises for consideration in these
two petitions, which also involve inter alia the interpretation of
Sections 7A(1) and 7B of the Citizenship Act, 1955 (‗the Act'). The
Petitioners challenge the policy of the Government of India in the
Ministry of Youth Affairs and Sports (MYAS), Respondent No.3, as
evidenced by its impugned communication dated 26 th December 2008
followed by the clarification dated 12th March 2009 to the effect that
only Indian passport holders will be permitted to represent India in
international sports events.
Facts in W.P. (C) No. 4148 of 2010 by Karm Kumar
2. Karm Kumar, the petitioner in Writ Petition (C) No. 4148 of 2010, is
a citizen of the United Kingdom (U.K.) and holds a U.K. passport. He
is an OCI. He is aggrieved by the decision of the Squash Rackets
Federation of India (‗SRFI'), Respondent No. 5, consistent with the
policy announcement dated 26th December 2008 of the Government of
India not to permit him to represent India in the international squash
tournaments.
3. Karm Kumar was born in India. He is stated to have gone along with
his parents to the United Kingdom when he was two to three years old.
Both his parents and Karm Kumar are citizens of U.K. Like his parents,
Karm Kumar is also a U.K. passport holder. His U.K. passport was last
renewed on 14th February 2007.
4. It is stated that Karm Kumar represented India in the 1st Asian Junior
Championship for Squash in Singapore in the under-15 Category and he
secured the 9th position in Asia. His name was included as a ‗Special
Project Player' by the SRFI in their 2006-10 Long-Term Development
Plan (LTDP) on 24th September 2006. It is stated that he played for the
Delhi Inter-state men's team in 2007. It is stated that till then the SRFI
had held out that foreign nationals who were PIOs and who had not
turned 16 could not play in the national tournaments although they
could play for India in regional and international events. On 31st March
2008, a letter was issued by the SRFI inviting players to attend the
selection camp for the forthcoming Asian as well as Junior World
championships. It was stated that only those who had valid Indian
passports would be considered for the camp.
5. Karm Kumar challenged the above communication by filing Writ
Petition (C) No. 3049 of 2008 in this Court. The first prayer in the said
petition was for quashing the rule made by the SRFI that ―foreign
nationals cannot participate in the National Squash Championship even
if they are Persons of Indian Origin and have a PIO or OCI status.‖ The
other prayer was for a direction to the Respondent MYAS ―to have a
uniform sports policy for the country whereby rules of eligibility so far
as they are based on nationality are the same for everyone‖ and for a
uniform policy on eligibility of PIO/OCI status holders to play for India
in regional and international tournaments.
6. By judgment dated 1st October 2008 in W.P.(C) No.3049 of 2008, a
learned Single Judge of this Court allowed the first prayer as regards
participation of OCIs in national tournaments. A direction was issued to
the Government of India to frame a uniform policy in the matter of
permitting OCIs to represent India in international sporting events. The
relevant portion of the judgment of the Single Judge of this Court read
as under:
―It is further noteworthy that learned counsel from both sides
have conceded that the absence of a uniform policy qua
eligibility of foreign nationals of Indian origin to represent
India in national and International sports is the fountainhead of
the disputes between the parties. The question, thus, arises as
to whether, individual Sports Federations, in the absence of any
uniform sports policy, can be allowed to ―pick and choose‖
potential players for competitive sports? The answer is an
emphatic ―no‖. I am afraid that this is precisely what the
impugned rule does - it makes an unnecessary classification
between players who are Indians and players who are foreign
nationals of Indian origin by first treating them alike. Having
already treated the under-16 Indian and foreign nationals at
parity with each other, the SRFI cannot subsequently make a
distinction between the two on the basis of nationality.
For the reasons aforestated, the present petition is allowed
in terms of clause (a) of the prayer made by the petitioner.
Consequently, the impugned rule restricting foreign
nationals of Indian Origin from participating in the
National Squash Championship is quashed. Taking into
consideration the observations made by the Union of India at
paragraph 6 of its short counter-affidavit filed on record,
wherein, it is stated there is no uniform policy followed by
National Sport's Federations with respect to participation of
foreign nationals of Indian origin in Indian Sports, and further,
that this being a policy issue, the respondents are reviewing the
matter, a direction is hereby issued to the Government that
such review, as contemplated by them, shall be done as
expeditiously as possible and in the best interest of sports in
the country.‖ (emphasis supplied)
7. The above judgment was challenged by the MYAS before a Division
Bench of this Court by filing LPA No. 643 of 2008. In the meanwhile,
consequent upon the judgment dated 1st October 2008 of the learned
Single Judge, the MYAS came out with a policy announcement by way
of its communication dated 26th December 2008 which reads as under:
―No. F.45-5/2008 SPI.I
Government of India,
Ministry of Youth Affairs & Sports,
Department of Sports,
Shastri Bhavan, New Delhi.
Dated: 26.12.2008
To
The President/Secretary General,
Indian Olympic Association,
B-29, Qutab Institutional Area,
New Delhi.
The President/Secretary Generals of All recognized
National Sports Federations,
Sir,
In the matter of Karam Kumar v. Union of India and
Ors. the Hon'ble High Court of Delhi has directed
Government to review the matter of participation of
foreign nationals of Indian origin in the national teams
and bring out a uniform national policy in the best
interest of sports in the country.
The matter has, in pursuance to the above direction of
the Hon'ble High Court of Delhi, been carefully
considered after seeking comments of Indian Olympic
Association, recognized National Sports Federations
and others concerned.
Based on this consultation, an overwhelming view has
emerged that the best interest of Indian Sports would
be served by ensuring that players who are Indian
citizens only represent the country in the National
teams. This would ensure that the limited resources
available are invested optimally in building world-
class athletes. This would also provide the opportunity
of giving international exposure and training to
deserving local talent, which would further improve
them to world class performance levels. Finally, it
would serve the long term interests of the country to
emerge as a front runner in the field of sports.
In view of the above, it has been decided that,
henceforth only players who are citizens of India
would be entitled to receive government support for
representing the country in the national teams. Further,
the above policy decision would also be applicable in
the consideration of proposals for the participation of
the national teams in international sports events.
Yours faithfully,
Sd/-
Shankar Lal
Under Secretary to Govt. of India.‖
(underlining in original)
8. A press release was also issued on 26th December 2008 by the MYAS
which stated that after consulting all the national sports federations and
after seeking the comments of the Indian Olympic Association (‗IOA')
it had been decided that just as financial assistance from government is
restricted to Indian nationals only, the inclusion of players in the
national teams would also be restricted only to Indian nationals.
9. While admitting LPA No.643 of 2008 filed by the MYAS on 7th
January 2009, a Division Bench of this Court noted that a uniform
policy had now been adopted by the Government of India on 26th
December 2008. It was, however, observed that:
―There seems to be to some ambiguity in that behalf in as
much as the apparent reading of the policy does seem to
indicate as if the government does not want to spend on
the training of the persons of Indian origin (PIO) and
Overseas Citizens of India (OCI) but there is no debarment.
This aspect would of course have to be examined while
hearing the appeal.‖
10. A special selection was directed to be held for the Petitioner to
determine whether he was entitled to represent India in the Asian Junior
Championship commencing on 16th January 2009, based on his
performance alone.
11. On 12th March 2009 the MYAS issued the following further
clarification:
―No.F.45-5/2008-SP-I
Government of India
Ministry of Youth Affairs and Sports
Department of Sports
-------
Dated : New Delhi, the 12th March, 2009
To,
The President/Secretary General,
Indian Olympic Association,
B-29, Qutab Institutional Area,
New Delhi
The President/Secretary Generals of
All Recognized National Sports Federations.
Sub: Government Policy on participation of foreign nationals
of Indian origin in national teams.
Sir,
Government vide letter of even number dated 26th December,
2008 has laid down the national policy on the above
mentioned project.
2. A question has arisen in respect of persons who are not
Indian citizens as to whether the policy only restricts
government support to them for participating in national
teams or altogether makes them ineligible to participate in
national teams.
3. As already stated in para 3 of the letter referred to above
and for the reasons mentioned in the said letter, it is clarified
that just as financial support from government is restricted to
Indian Nationals only, the inclusion of players in the national
teams is also restricted to Indian nationals only. In other
words, only Indian nationals are eligible to be part of the
national team and walk under the Indian flag.
Yours faithfully,
Sd/-
(Shankar Lal)
Under Secretary to the Government of India‖
(emphasis supplied)
12. On 18th March 2009, in view of the fact that a clarificatory circular
had been issued by the MYAS on 12th March 2009, the LPA No. 643 of
2008 was dismissed as withdrawn.
13. Aggrieved by the above circulars, Karm Kumar filed Writ Petition
(C) No. 10477 of 2009 in this Court in which notice was issued on 28th
July 2009. Subsequently on 6th November 2009 the writ petition stood
dismissed in default. Thereafter the present petition was filed by Karm
Kumar on 4th June 2010. An urgent interim order was sought by him in
view of the impending South Asian Tournament in Sri Lanka. This
Court was not inclined to grant any interim relief. This Court was
informed that the selection for the said tournament in Sri Lanka had
already taken place on 12th June 2010 and therefore it was not possible
for Karm Kumar to be accommodated. In the circumstances when on 5th
July 2010 counsel for Karm Kumar insisted on an interim relief being
granted to permit him to participate in the Asian tournament which was
beginning in Sri Lanka in August 2010, this Court with the consent of
the parties took up the writ petition itself for final hearing.
Writ Petition (C) No. 4263 of 2010 by Robert Blanchette
14. This writ petition by Robert Blanchette contains a sketchy and
incomplete narration of the facts. For instance, there is nowhere an
indication that the petition concerns participation in equestrian events.
Strangely, the list of dates in both, this petition as well as that of Karm
Kumar, is identical. The following narrative is based on the few facts
that could be discerned from the petition and what counsel stated during
the hearing.
15. Robert Blanchette is a citizen of the United States of America
(U.S.A) and holds that country's passport. He is a permanent resident of
California. Robert Blanchette is stated to be qualified to be a PIO. It is
claimed that Robert Blanchette ―possesses a PIO status as his paternal
grandparents are Indian citizens.‖ His father who surrendered his Indian
citizenship is also said to have a PIO status. He is aggrieved by the
policy of MYAS in terms of which a PIO cannot represent India in
international equestrian events.
16. It is stated by the counsel for Robert Blanchette that he is qualified
to participate in international equestrian championships, and if the
policy of the MYAS as announced on 26th December 2008 is set aside
he will qualify to represent India as a third member of the Indian
equestrian team.
17. Both Petitioners seek to place reliance upon the judgment dated 18 th
March 2010 passed by the Punjab and Haryana High Court in Civil
Writ Petition No. 18093 of 2009 (titled `Sorab Singh Gill v. Union of
India'). While allowing the said writ petition, the Punjab and Haryana
High Court directed that Sorab Singh Gill, an OCI and a holder of a
U.S.A. passport would be accorded the same status as an NRI insofar as
participating on behalf of India in the international or regional shooting
events was concerned. The two petitioners seek parity of treatment with
Sorab Singh Gill.
Reply by the MYAS
18. In the counter affidavit filed by the MYAS in Karm Kumar's writ
petition, it is pointed out that against the judgment of the High Court of
Punjab and Haryana in Sorab Singh Gill v. Union of India, the Union
of India filed a Special Leave Petition (C) No. 10880 of 2010 in the
Supreme Court in which notice was directed to be issued on 19th April
2010. Since by that date the entire team which had been sent for
participation in the international shooting event at Singapore had been
recalled, the Supreme Court was informed that the application for stay
had been rendered infructuous. Accordingly, no order was passed on
the application for stay.
19. This court has heard the submissions of Ms. Roma Bhagat, the
learned counsel appearing for the Petitioners, Mr. A.S. Chandhiok,
learned Additional Solicitor General of India, Mr. Jatan Singh, the
learned counsel appearing for Union of India and Mr. K. Hari Shankar,
the learned counsel, appearing for the SRFI.
Interpretation of the relevant provisions
20. In order to appreciate the context in which the issue arises, it is
necessary first to notice some of the relevant provisions of the
Constitution of India concerning citizenship. Article 5 talks of the
position at the time of the commencement of the Constitution, Article 9
states that the deeming fiction of citizenship in Articles 5 to 8 will not
apply if a person ―has voluntarily acquired the citizenship of any
foreign state.‖ These words have been judicially interpreted to imply
that obtaining a passport of a foreign country is an instance of
voluntarily acquiring citizenship of that country. In Izhar Ahmad Khan
v. Union of India, 1962 Supp (3) SCR 235 the Supreme Court was
examining the validity of Rule 3 of the Rules of evidence set out in
Schedule III to the Citizenship Rules in terms of which the enquiry
under Section 9(2) of the Act had to be conducted. The Court observed:
―16. That takes us to Schedule III which prescribed the rules of
evidence under which the enquiry under Section 9(2) would be
held. Under Rule 1, it is provided that if it appears to the Central
Government that a citizen of India has voluntarily acquired the
citizenship of any other country, it may require proof within the
specified time that he has not so acquired the citizenship of that
country; and the burden of proving this shall be upon him. Under
Rule 2, the Central Government is empowered to make a
reference in respect of any question, which it has to decide in the
enquiry, to its Embassy in the country concerned or to the
Government of the said country and it authorises the Central
Government to act on any report or information received in
pursuance of such reference. Then follows Rule 3 the validity of
which is challenged before us. This rule reads thus:
―The fact that a citizen of India has obtained on any date a
passport from the Government of any other country shall
be conclusive proof of his having voluntarily acquired the
citizenship of the country before that date.‖
To the rest of the rules it is unnecessary to refer. The scope and
effect of Rule 3 are absolutely clear. If it is shown that a citizen
of India has obtained a passport from a foreign Government on
any date, then under Rule 3 an inference has to be drawn that by
obtaining the said passport he has voluntarily acquired the
citizenship of that country before the date of the passport. In
other words, the proof of the fact that a passport from a
foreign country has been obtained on a certain date
conclusively determines the other fact that before that date,
he has voluntarily acquired the citizenship of that country.‖
(emphasis supplied)
21. The above legal position was set out at a time when there was no
policy of ‗dual citizenship'. On March 31, 1999, the Government of
India launched the Persons of Indian Origin (‗PIO') Card Scheme for
foreign passport holders of Indian origin. The broad policy was to give
them parity with Non-Resident Indians (‗NRIs'). The PIO Card Scheme
was revised on 19th July 2002 by the Government of India. By the
Citizenship (Amendment) Act, 2003 (Act No. 6 of 2004) with effect
from 3rd December 2004 provisions concerning overseas citizenship
were introduced in the Act. In particular Section 7A regarding
registration of OCIs and Section 7B concerning ‗Conferment of rights
on OCIs' were inserted. Initially, on the basis of reciprocity, OCI status
was proposed to be granted to PIOs in sixteen countries other than
Pakistan and Bangladesh. A policy decision was taken by the
Government of India to grant OCI status ―to all overseas Indians who
migrated from India after 26th January 1950 as long as their home
countries allow dual citizenship.‖ This was given effect to by a further
amendment to Section 7A of the Act with retrospective effect from 28th
June 2005.
22. Section 7A of the Act after the 2005 amendment reads thus:
7A. Registration of overseas citizens of India.--The Central
Government may, subject to such conditions and restrictions as
may be prescribed, on an application made in this behalf, register
as an overseas citizen of India--
(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
(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 grand-child of such a citizen; or
(b) a person, who is a minor child of a person mentioned in
clause (a):
Provided that no person, who 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.
23. Section 7A of the Act created as it were a new species called the
OCI which appear to be a sub-species of PIOs although Section 7A
itself does not use the word PIO. It calls for a greater generational
proximity of the OCI with the country of origin than the PIO status
does. Thirdly, while OCI has received, through the amendment to
Section 7A of the Act a statutory status, a PIO remains within the realm
of a scheme without such statutory or constitutional status. In other
words, while the statutory provision governing an OCI can be traced to
Article 11 of the Constitution, there is no corresponding statutory status
accorded to the PIO. While the above broad features distinguish an OCI
from a PIO, the rights that go with either status are dependent on the
policy of the Government of India. Thus the gaining of the status of an
OCI or a PIO does not guarantee parity of treatment with Indian
passport holders. Of course within OCIs as a class there may be a case
made out for non-discrimination and equal treatment in the context of
Article 14 of the Constitution but not vis-à-vis Indian passport holders.
The classification of PIOs and the sub-classification of OCIs is based
on intelligible differentia justifying a different treatment vis-à-vis
Indian passport holders. This of course is the position as of today since
it is reflective of the current policy of the Government of India
concerning OCIs and PIOs. If the policy changes hereafter to extend
further rights to OCIs and/or PIOs that would obviously be reflected in
the notifications that are issued or the statutory changes that are brought
about. That is not a matter for the court to dictate.
24. To understand the limited nature of the rights conferred on OCIs
one has to turn to Section 7 B of the Act, which reads thus:
7 B. Conferment of rights on overseas citizens of India.
(1) Notwithstanding anything contained in any other law for the time
being in force, an overseas citizen of India 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 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, 5-A 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 a 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 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.
25. The very wording of Section 7B of the Act indicates that what is
meant to be granted to OCIs is a limited right. Secondly, it is a statutory
right and not a fundamental or constitutional right. The grant of the
limited right is by the central government by notification under Section
7B of the Act. Therefore what right is granted depends on the policy of
the central government. It is not automatic on the attaining of the status
of an OCI. There cannot be a presumption that a right that is not taken
away by a notification is deemed to have been granted. On the other
hand Section 7B makes it clear that only those rights that are
specifically granted by a notification issued by the central government
in exercise of its powers under Section 7B(1) of the Act are available to
an OCI. The legislative intent appears to give the government flexibility
in changing its policy from time to time. It might, depending on the
circumstances, change its policy and decide to withdraw a right granted
to an OCI by issuing a notification to that effect. Incidentally, there is
no challenge to the validity of Section 7B of the Act which permits this.
26. One such notification issued on 11th April 2005 by the Ministry of
Home Affairs under Section 7B(1) of the Act reads:
―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 person 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
Registration 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.‖
(emphasis supplied)‖
27. It was urged that the words ‗educational fields' would include
participation in international sports events and therefore on the strength
of the above notification OCIs cannot be denied the right to represent
India in international sports events. Reliance is placed on the judgment
of the Punjab and Haryana High Court in the Sorab Singh Gill case.
Although the challenge to the said decision by the MYAS is pending
consideration by the Supreme Court, counsel for the Petitioners has
insisted that since the said judgment has not been stayed by the
Supreme Court, it has persuasive value on this Court. Therefore, this
Court turns next to the said decision.
The judgment of the P&H High Court
28. Ms. Roma Bhagat submitted that the MYAS cannot discriminate
against the Petitioner who was placed in the same situation as Sorab
Singh Gill, an OCI who had been permitted by the Punjab and Haryana
High Court to represent India in the international shooting event on par
with NRIs. It was urged that since Sorab Singh Gill was permitted to
play for India in the international sporting event in Singapore, Karm
Kumar, an OCI, had to also be extended the same facility as an NRI and
be permitted to represent India in the South Asian squash
Championship to take place in Colombo in August this year.
29. On behalf of the Respondents, it is pointed out that Sorab Singh Gill
in fact did not represent India in the international shooting competition
in Singapore since the entire Indian team was recalled. It is pointed out
that the MYAS has not accepted the decision and its challenge to it is
pending before the Supreme Court. In the circumstances, there was no
question of any discrimination being practised against Karm Kumar.
30. The facts in Sorab Singh Gill's case may first be noticed. Sorab
Singh Gill was a person born in the USA on 19th August 1987. He
returned to India when he was one year old and throughout received his
education in India. He was at the relevant time studying in the third
year of the five-year law course at the Punjab University. The
Petitioner's father was serving as the Director General of Police in the
State of Punjab. Sorab Singh Gill was granted OCI status by the
Government of India on 9th April 2007. He represented India in the
Skeet Event in 4th International Tournament in Junior World Shooting
Event at Suhl-Germany and in the World University Games at
Bangkok-Thailand. He was also selected as a member of the Indian
team for the Asian Championship. He secured two gold medals in the
11th Asian Shooting Championship held at Kuwait in 2007.
31. It was noticed in para 4 of the judgment in Sorab Singh Gill that his
grievance was based on the interpretation of the policy dated 26 th
December 2008 and the consequent policy dated 12th March 2009
formulated by the Union of India. In interpreting the notification dated
11th April 2005 of the MHA, the Punjab and Haryana High Court relied
upon a judgment of the Delhi High Court in Ajay Jadeja v. Union of
India 95 (2002) DLT 14 where it was observed in para 21 as under:
―21. In the instant case, not only is a violation of
fundamental right complained of but the nature of the duty
being discharged by the respondent is certainly a public duty
dealing with an activity which is of widest general public
interest and is in the furtherance of a sporting activity which
is of importance to any civilised society. In fact modern
education policies regards sports as an essential component
of good education.‖
32. Thereafter in para 17 in Sorab Singh Gill it was observed as under:
―17. In the light of the above position of law, it is the
contention of learned Counsel for the petitioner that the
petitioner was at liberty to pursue the education on terms
equivalent to that of an NRI. It was further submitted that it
is not in dispute that an NRI could represent India in
International Sports events, and that such sporting facility
being part of education as held by Delhi High Court, as well
as by the Hon'ble Supreme Court, could not be denied to the
petitioner.‖
33. It was concluded that since an NRI was permitted to represent India
in an international sports event and since by the notification dated 11th
April 2005 OCIs had been granted facilities on par with NRIs, Sorab
Singh Gill could not be denied the right to represent India in the
international shooting event.
34. As far as this Court can appreciate, the judgment in Sorab Singh
Gill turned on the interpretation of the words ―educational fields‖
occurring in the notification dated 11th April 2005. The reasoning
appears to be that the participation in sporting events by a student in
school forms an integral part of education. This Court is unable to read
the above notification dated 11th April 2005 issued under Section 7B of
the Act as anything more than granting parity to the OCIs with NRIs in
―economic, financial and educational fields‖. In the context of
educational field what it connoted was that if an NRI was granted
admission to educational institutions in India, under a quota meant for
NRIs, then an OCI would equally be eligible to be considered under the
said quota. The intention was not to permit OCIs to represent India in
international sporting events. An OCI need not be a student studying in
India at all. An OCI could well be merely a resident of a foreign
country of which he or she is a passport holder. The right to represent
India in an international sporting event does not, in the considered view
of this Court, flow from the above notification dated 11th April 2005.
Limited scope of interference in policy decisions
35. It was then contended by Ms. Bhagat that the policy of permitting
OCIs to play in national tournaments while denying them the right to
represent India in international events was seriously flawed, arbitrary
and irrational. She submits that the so-called policy was framed on an
erroneous presumption that there was no prior policy of permitting
OCIs to represent India when in fact there was such a policy. If the
intention was to provide PIOs and OCIs the same facilities extended to
NRIs then the policy as reflected in the communication dated 26 th
December 2008 was inconsistent with such intention. She submitted
that neither the said communication nor the subsequent clarification
dated 12th March 2009 could be said to be valid as they were not
‗notifications' in terms of Section 7B(1) of the Act.
36. In response to the above submissions, it is submitted by Mr.
Chandhiok that a uniform policy decision had to be taken by the
Government of India after consultation with all the national sports
federations (NSFs) in India. This was the outcome of the judgment of
this Court in Karm Kumar's case in the earlier round of litigation. The
uniform view expressed by NSFs was that only Indian passport holders
should be permitted to represent India. This was a policy decision taken
by the Government of India which could not be said to be arbitrary or
unreasonable. It was inevitable that a policy decision affected one or the
other person adversely. However, that by itself could not render the
policy arbitrary or unreasonable.
37. The scope of the powers of this Court to interfere with what is
essentially a policy decision of the government of India is well settled.
In M.P. Oil Extraction v. State of M.P. (1997) 7 SCC 592 the Supreme
Court explained (SCC, p. 611):
―41.......The executive authority of the State must
be held to be within its competence to frame policy
for the administration of the State. Unless the policy
framed is absolutely capricious and, not being
informed by any reason whatsoever, can be
clearly held to be arbitrary and founded on mere
ipsi dixit of the executive functionaries thereby
offending Article 14 of the Constitution or such
policy offends other constitutional provisions or
comes in conflict with any statutory provision,
the Court cannot and should not out step its limit
and tinker with the policy decision of the
executive functionary of the State. This Court, in
no uncertain term, has sounded a note of caution by
indicating that policy decision is in the domain of
the executive authority of the State and the Court
should not embark on the unchartered ocean of
public policy and should not question the efficacy
or otherwise of such policy so long the same does
not offend any provision of the statute or the
Constitution of India. The supremacy of each of
three organs of the State i.e. legislature, executive
and judiciary in their respective field of operation
needs to be emphasised. The power of judicial
review of the executive and legislative action must
be kept within the bounds of constitutional scheme
so that there may not be any occasion to entertain
misgivings about the role of judiciary in out
stepping its limit by unwarranted judicial activism
being very often talked of in these days. The
democratic set up to which the polity is so deeply
committed cannot function properly unless each of
the three organs appreciates the need for mutual
respect and supremacy in their respective field.‖
(emphasis supplied)
38. In Ugar Sugar Works Limited v. Delhi Administration (2001) 3
SCC 635 the Supreme Court observed thus (p. 643):
―18. ...It is well settled that the Courts, in exercise
of their power of judicial review, do not ordinarily
interfere with the policy decisions of the executive
unless the policy can be faulted on grounds of
mala fide, unreasonableness, arbitrariness or
unfairness etc. Indeed, arbitrariness, irrationality,
perversity and mala fide will render the policy
unconstitutional. However, if the policy cannot be
faulted on any of these grounds, the mere fact that
it would hurt business interests of a party, does not
justify invalidating the policy. In tax and economic
regulation cases, there are good reasons for judicial
restraint, if not judicial deference, to judgment of
the executive. The Courts are not expected to
express their opinion as to whether at a particular
point of time or in a particular situation any such
policy should have been adopted or not. It is best
left to the discretion of the State.‖
39. This Court is of the view that the policy decision taken by the
Government of India as announced on 26th December 2008, as
subsequently clarified on 12th March 2009, restricting the right to
represent India in international sporting events to Indian passport
holders, cannot be said to be arbitrary, irrational or unreasonable. There
is a justification in insisting that only Indian passport holders should
represent India in an international sporting event. Those with foreign
passports obviously owe their allegiance to the country of which they
hold the passport. As long as the policy of the Government of India
does not recognize dual citizenship in all aspects, this Court cannot
accept the submission that even foreign passport holders should be
permitted to play for India in international sporting events. Ultimately
the decision whether Indians alone should be allowed to represent India
in an international event is a matter of policy of the Government of
India. The scope of the powers of this Court under Article 226 of the
Constitution of judicial review of such policy decision is extremely
limited.
40. It is perfectly possible that only Indian passport holders are allowed
to represent India in international sporting events whereas national
events are thrown open to both OCIs and PIOs. This Court finds
nothing unreasonable or irrational in these two distinct policies: one for
the national tournaments and the other for international tournaments.
41. The contention that the entire policy has been made by the Union of
India only to victimize Karm Kumar needs only to be stated to be
rejected. This submission at best can be termed as `extraordinary'. It is
no doubt true that the said policy came to be framed as a result of the
order passed in the Writ Petition (C) No. 3049 of 2008 filed by Karm
Kumar in this Court. However, it is quite a different thing to say that
the policy has been framed only to ‗victimise' Karm Kumar. The said
policy has a uniform application to all OCIs and does not single out
Karm Kumar for a different treatment.
42. The submission that the policy decision should be announced only
by way of a notification proceeds on an erroneous reading of Section
7B(1) of the Act. A notification is required only where it is proposed to
confer a right on an OCI. The impugned communications do the
opposite. They clarify the policy decision not to grant OCIs the right to
represent India in international tournaments.
Legitimate expectation
43. It was submitted by Ms. Bhagat that the past practice of permitting
both the PIOs and OCIs to represent India in international sporting
events has given rise to a legitimate expectation of continuation of that
practice. She submits that Karm Kumar was permitted to represent
India prior to the change in the policy. He was also placed on the Long-
Term Development Plan of the SRFI in 2006. All this constituted a
representation held out to him that he will continue to play for India in
international sporting events. According to her, this legitimate
expectation cannot be frustrated by introducing a policy to his
detriment. Relying on such representation, Karm Kumar had made
India his place of domicile expecting to play for it. It is submitted that
although Karm Kumar is the holder of a U.K. passport, the fact that he
has represented India in an international sporting event, disentitles him
to represent the U.K. in an international sporting event for three years.
As a result, Karm Kumar will not be in a position to play for any
country in international events for quite some time to come. This, it is
contended, adversely affects Karm Kumar's participation in other
professional championships as well since his international ranking will
depend on the number of tournaments he is able to play for India.
44. It is pointed out in response by Mr. Chandhiok that Karm Kumar
could have been under no illusion that a policy was to be announced by
the Union of India as that was one of his prayers in the earlier writ
petition. Also, Section 7B(1) of the Act made it clear that OCIs had
limited rights. Certainly the statute gave no rise to any legitimate
expectation that OCIs could represent India in sporting events.
45. Having considered the above submissions, this Court is of the view
that no specific assurance was held out to Karm Kumar by the Union of
India that he will be permitted to represent India for all times to come.
The facts and circumstances outlined did not give rise to a legitimate
expectation that the past practice of permitting OCIs and PIOs to
represent India in international sporting events would continue
indefinitely. As explained by the Supreme Court an important exception
to the doctrine is a justifiable policy change.
46. In Union of India v. Hindustan Development Corporation (1993)
3 SCC 499 the Supreme Court explained in para 28 that:
―The legitimacy of an expectation can be inferred
only if it is founded on the sanction of law or
custom or an established procedure followed in
regular and natural sequence. Again it is
distinguishable from a genuine expectation. Such
expectation should be justifiably legitimate and
protectable. Every such legitimate expectation
does not by itself fructify into a right and therefore
it does not amount to a right in the conventional
sense.‖
47. It was further explained in para 33 in Union of India v. Hindustan
Development Corporation:
―The doctrine does not give scope to claim relief
straightaway from the administrative authorities as
no crystalised right as such is involved. The
protection of such legitimate expectation does not
require the fulfillment of the expectation where an
overriding public interest requires otherwise. In
other words where a person's legitimate
expectation is not fulfilled by taking a particular
decision then decision-maker should justify the
denial of such expectation by showing some
overrating public interest. Therefore even if
substantive protection of such expectation is
contemplated that does not grant an absolute
right to a particular person. It simply ensures
the circumstances in which that expectation
may be denied or restricted. A case of legitimate
expectation would arise when a body by
representation or by past practice aroused
expectation which it would be within its powers to
fulfill. The protection is limited to that extent and a
judicial review can be within those limits.‖
(emphasis supplied)
48. After emphasising that the burden was on the person who bases his
claim on the doctrine of legitimate expectation to satisfy that there has
been a representation or a past practice that has given rise to such
expectation, it must be shown that the decision of the authority was
―arbitrary, unreasonable and not taken in public interest‖. It was
observed: ―If it is a question of policy, even by way of change of old
policy, the courts cannot interfere with the decision‖. Even if the court
was satisfied that a case of legitimate expectation was made out, it can
grant relief only where the failure to give an opportunity of hearing
prior to such decision has resulted in failure of justice.
49. In Sethi Auto Service Station v. DDA (2009) 1 SCC 180 it was held
(SCC, p.190-191):
―32. ... a case for applicability of the doctrine of legitimate
expectation, now accepted in the subjective sense as part of our
legal jurisprudence, arises when an administrative body by reason
of a representation or by past practice or conduct aroused an
expectation which it would be within its powers to fulfil unless
some overriding public interest comes in the way. However, a
person who bases his claim on the doctrine of legitimate
expectation, in the first instance, has to satisfy that he has relied
on the said representation and the denial of that expectation has
worked to his detriment. The Court could interfere only if the
decision taken by the authority was found to be arbitrary,
unreasonable or in gross abuse of power or in violation of
principles of natural justice and not taken in public interest. But a
claim based on mere legitimate expectation without anything
more cannot ipso facto give a right to invoke these principles.‖
50. The above principles were reiterated recently in Jasbir Singh
Chhabra v. State of Punjab (2010)4 SCC 192.
51. Consequently, this Court finds no merit in the submission that either
of the Petitioners can claim that they have a legitimate expectation
about representing India in the international sporting events.
Citizens and Nationals
52. It was submitted by Ms. Bhagat that as long as the Petitioners were
Indian `nationals', their right to represent India an international sporting
event could not be denied. It was submitted that a person domiciled in
India by birth would always be an Indian national whether or not he has
an Indian passport. Reference was made to the International Olympic
Charter and regulations in support of this submission. On the other
hand, the learned ASG also referred to the charters of international
sports bodies which require the ‗nationals' to be recognised by the law
of those countries of which they claim to be nationals.
53. As far as the legal position in India is concerned, wherever a
reference is made to an Indian `national', in law it means an Indian
`citizen'. But the vice versa is not true. In State Trading Corpn. of
India, Ltd. v. CTO (1964) 4 SCR 99 the Supreme Court explained:
―But the question still remains whether ―nationality‖ and
―citizenship‖ are interchangeable terms. ―Nationality‖ has
reference to the jural relationship which may arise for
consideration under international law. On the other hand
―citizenship‖ has reference to the jural relationship under
municipal law. In other words, nationality determines the civil
rights of a person, natural or artificial, particularly with reference
to international law, whereas citizenship is intimately connected
with civic rights under municipal law. Hence, all citizens are
nationals of a particular State, but all nationals may not be
citizens of the State. In other words, citizens are those
persons who have full political rights as distinguished from
nationals, who may not enjoy full political rights and are still
domiciled in that country (vide P. Weis-Nationality and
Statelessness in International Law pp. 4-6; and Oppenheim's
International Law, Vol. 1. pp. 642, 644).‖ (emphasis supplied)
54. The Act and the policy refer to the notion of ‗citizenship' and not
‗nationality'. Theoretically it may be possible to argue that nationality
and citizenship are not necessarily one and the same thing. But where
the requirement in terms of Article 9 of the Constitution of India read
with Section 7B of the Act is to demonstrate that the person is an Indian
citizen within the meaning of that statute, it is not enough to show that
the person is an Indian ‗national'. Absent an explicit recognition of
such status in law, a ‗national' may not per se be entitled to the same
treatment as a ‗citizen'.
55. On behalf of Mr. Robert Blanchette it is submitted that PIOs have
always been treated on par with NRIs. PIOs have also been considered
for grant of Arjuna Awards. Prior to the policy, there were PIOs who
were representing India in international sporting events. It is submitted
that by denying Robert Blanchette the right to represent India in the
equestrian event, India might well lose the chance of participating in
equestrian events for all times to come.
56. This Court is unable to accept the above submission. A uniform
policy had to be adopted on the question of permitting PIOs and OCIs
to represent India in international sporting events. To reiterate, it is
possible that this departure from the past practice might prove to be
detrimental to some of the PIOs and OCIs who were expecting to
represent India in international sporting events for all times to come.
However, the mere fact that it would adversely affect some persons
does not make a uniform policy that is based on rational criteria,
arbitrary or unreasonable. The entire life of a sportsperson does not
hinge only on representing a country in an international sporting event.
In each field of sports, there are several competitive tournaments held
throughout the year all over the world where participation does not
hinge on nationality.
Conclusion
57. The question posed at the beginning was this: Can an OCI or a PIO
claim a right to represent India in an international sporting event? The
answer to that question is in the negative given the present policy of the
Union of India which this Court does not find to be arbitrary or
unreasonable.
58. For all of the aforementioned reasons, there is no merit in either of
the writ petitions and they are dismissed, but in the circumstances, with
no order as to costs. All the pending applications stand disposed of.
S. MURALIDHAR, J.
rd
3 August, 2010
akg
