No Right to Residence for Foreigners Under Constitution: Delhi HC

January 17, 2024

Context:

The Delhi High Court in a recent judgment specified that the right to reside in India under Article 19(1)(e) of the Constitution of India cannot be claimed by foreigners.

The judgment came on a writ petition of habeas corpus moved by a suspected Bangladeshi national claiming his detention as illegal and without authority.

Foreigners Can’t Claim Right To Reside And Settle In India; Observation By the Delhi HC:

Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta of 1955: The Supreme Court in this case observed that the power of the Indian government to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering such discretion.
Article 21: The rights of foreigners are limited to the one declared under Article 21 of the Constitution of India i.e. Fundamental Right to Life and Liberty.

Fundamental Rights to Foreigners in Indian Constitution

Fundamental Rights of Foreigners
Article 14:	Legal equality and equal protection under the law.
Article 20:	Protection in respect of conviction for offenses.
Article 21:	Protection of life and liberty.
Article 21(A):	Right to primary education.
Article 22:	Protection against arrest and imprisonment in certain circumstances.
Article 23:	Prohibition of human trafficking and forced labor.
Article 24:	Prohibition of child labor in factories.
Article 25:	Freedom of conscience and free profession, practice, and propagation of religion
Article 26	Freedom to manage religious affairs.
Article 27:	Freedom from payment of taxes for promotion of any religion.
Article 28:	Freedom from religious instruction or worship in certain educational institutions

Also Refer: Fundamental Rights(Article 12-35) Of Indian Constitution

Legal Rights of foreigners:

The Registration of Foreigners Act of 1939 and the Foreigners Act of 1946 control foreigners’ admission, stay, and exit from India. These laws provide the central government powers to uphold fundamental rights for foreigners.
- Section 3 of the Foreigners Act of 1946: It contains government regulations ranging from imposing movement restrictions to prohibiting association with persons of a prescribed or specified description to requiring foreigners to reside in a specific location.
  - It also include provisions for house arrest, imprisonment, solitary confinement, and summary expulsion from India
- The Passport Act of 1920 and the Foreigners Act of 1946: It allow for the expulsion or deportation of a person from India

About Writ Petitions:

Definition: It is A Command in writing in the name of the Court ie. It is a legal document issued by the court that orders a person or entity to perform a specific act or to cease performing a specific action or deed.
Issued by: They are issued by the Supreme Court under Article 32 and by the High Court under Article 226 of the Constitution of India.
Types: There are 5 types of writs namely,
- Habeas Corpus: By virtue of this writ, the Court directs the person so detained to be brought before it to examine the legality of his detention. It can be issued against both public authorities and individuals.
- Mandamus: It means ‘we command’ and is issued by the Court to direct a public authority to perform the legal duties which it has not or refused to perform. It can be issued against a public official, public corporation, tribunal, inferior court or the government.
- Certiorari: It is a curative writ i.e. it is passed to rectify the orders of a lower court or a tribunal which is beyond its powers or committed an error of law.
- Quo warranto: It means ‘by what warrant’ and Its objective is to prevent a person from holding an office he is not entitled to, therefore preventing usurpation of any public office.
- Prohibition: It is issued by a Court to prohibit the lower courts, tribunals and other quasi-judicial authorities from doing something beyond their authority.