Recent judgement by HC held that foreigner cannot claim right to reside in India under Constitution

Source: This article is based on the article “Foreigner cannot claim right to reside in India under Constitution: Delhi HC” published in “The Indian Express” on 12th January 2024.

Why in news?

Recently, Delhi HC held in a judgement that foreigners cannot claim the right to reside in India under Article 19(1)(e) of the Constitution of India.

What is the judgement?

1) Delhi HC hearing a habeas corpus petition filed by a man claiming that his nephew, Azal Chakma, suspected to be a Bangladeshi national, was unlawfully detained by the Foreign Regional Registration Office.

2) Delhi HC dismissing the petition observed that foreigners cannot claim the right to reside and settle in India in terms of Article 19 (1) (e) of the Constitution of India as their fundamental rights are limited to the protection of life and liberty under Article 21 of the Constitution of India.

3) The bench made it clear that the prayer in the present writ petition is confined to habeas corpus relief. There is no indication that the detention of Mr. Azal Chakma is deemed illegal.

4) The bench also emphasized that his movement restrictions are imposed to facilitate his availability for deportation, and such restrictions cannot be considered unlawful.

5) The high court cited the Supreme Court’s ruling in Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta, highlighting that the apex court had emphasized the absolute and unlimited power of the Indian government to expel foreigners. The court noted that there is no provision in the Constitution restraining such discretion.

What does Article 19 (1) (d) and Article 19 (1) (e) states?

1)  Article 19(1)(d) ensures the right to move freely within the country, encompassing the right to use roads and highways.

2) Article 19(1)(e) affirms the fundamental right of every citizen to reside and settle in any part of India.

3) Article 19(1)(d) and (e) complement each other, granting citizens the right to move freely and reside anywhere in India.

4) Article 19(5) allows reasonable restrictions on the right to freedom of movement and residence for the interests of the general public or the protection of any Scheduled Tribe.

What is illegal detention?

1)  It is the unjustifiable imprisonment or the unlawful deprivation of liberty by the way of “arrest” for a wrongful cause or suspicion and continued restriction of freedom by such person in custody.

2) If a person is unlawfully detained by the police, the Constitution allows redressal by the filing of a habeas corpus petition under Article 32 or 226. 

3)  Habeas Corpus writ acts as a remedial measure for the person who is illegally detained.

UPSC Syllabus: Polity