Analyzing the Rights of Foreigners under the Constitution of India

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The Indian constitution is the largest written constitution, containing 470 Articles in 22 parts and with 12 schedules and it is this towering treatise that guarantees the right to its people.  But what does the Indian constitution say about the rights of foreign nationals? Before answering this question it is essential to understand the concept of foreigners according to the provisions prescribed in Section 2 of the 1939 Registration of Foreigners Act which defines a ‘foreigner’ as ‘a person who is not a citizen of India’. Now coming back to the original premise the fundamental rights are granted under Part III of the constitution of India. While an ordinary citizen enjoys every possible right enshrined in the constitution, there are certain limitations when it comes to foreign national or Non- citizens. Non- citizens are generally governed inter-alia under the Foreigners Act, 1946, Passport (Entry into India) Act, 1920, The Registration of Foreigners Act, 1939, and the Registration of Foreigner Rules, 1992. All these acts and the Orders affirmatively grant the Indian government powers to restrict the movement of foreigners inside India, to mandate medical examinations, to limit employment opportunities, and to control the opportunity to associate, in many cases the courts have restricted these action designating them as arbitrary and in violation of the fundamental rights enshrined in the constitution. This article aims to examine these provisions, determine loopholes, and suggest policy recommendations.

Which all rights are granted to foreign nationals/ Non-citizens

The majority of Sovereign Nations follow the principles of Natural justice and provides Basic Human rights to foreign nationals. India on its part has not only adopted the Universal Declaration of Human Rights but also contributed to its substance significantly. The Universal Declaration of Human rights consists of 30 Articles which have many similarities with rights enshrined in the Indian constitution. The constitutional framers were cautious so as not to deny any fundamental right to Non-citizens that would prove to be detrimental for their survival or could devoid them from liberty and equality. It is necessary to know the distinction between the rights of citizens and foreign nationals in order to determine if there is a violation of these rights.

Here are the rights granted to foreign national by the constitution:-

Article 14- The right to equality before the law and equal protection of laws

Article 20- right to protection in respect to conviction for offenses.

Article 21- right to protection of life and personal liberty.

Article 21A-right to elementary education

Article 22- right to protection against arrest and detention in certain cases.

Article 23- prohibition of traffic in human beings and forced labour

Article 24- prohibition of employment of children in factories etc.

Article 25- right to freedom of conscience and free profession, practice and propagation of religion.

Article 26- right to freedom to manage religious affairs

Article 27- right to freedom as to payment of taxes for promotion of any religion.

Article 28- right to freedom from attending religious instructions or worship in certain educational institutions.

These rights are granted to each and every person residing in the territory of India. However there certain rights that are exclusively granted to Citizens of India only.

Article 15- prohibition of discrimination on the grounds of religion, race, caste, sex, or place of birth.

Article 16- equality of opportunity in matters of public employment.

Article 19- protection of certain rights regarding freedom of speech, etc.

Article 29- protection of interests of minorities.

Article 30- rights of minorities to establish and administer educational institutions.

Loopholes in current provisions governing foreign nationals

  • India relies on the Registration of Foreigners Act, 1939, and the Foreigners Act, 1946 to govern the entry, stay, and exit of foreigners in India. The majority of these laws are archaic in nature and do not stand the test of principles of natural justice moreover these laws grants the central government unfettered and arbitrary powers. Upon a critical examination the section 3 of the Foreigner Act, 1946 is noteworthy. The power under Section 3 of the Foreigners Act, 1946, is a “power to make orders”. Section 3, subsection 2, clause (e) of the Foreigner’s Act (1946), contains a list of nine orders embodying government regulations from imposing restriction on movement, prohibiting from association with persons of a prescribed or specified description to requiring foreigners to reside in a particular place. There also provisions of, Powers of house arrest, detention, solitary confinement, and summary removal from India under these Acts, which clearly infringe upon the fundamental rights of life and personal liberty guaranteed under Article 21 of the Constitution. The Passport (Entry into India) Act, 1920, and the Foreigners Act, 1946 Acts permit the removal or the deportation of a person from India without providing any forum or procedure for the determination of the question of the nationality of the foreigner or giving any statutory rights in this process. This is a violation of the principle of natural justice.
  • Under Indian Law, all persons who are not citizens are deemed foreigners including refugees, international migrants, tourists, etc. Currently, Section 2 of The Foreigners Act (1946) and the Registration of Foreigners Act (1939) provides the definition of “foreigner”. But this definition has proven to be insufficient in distinguishing between various non-citizens such as refugees or even illegal immigrants. This failure to distinguish between different categories of non- citizens has failed to address the special circumstances and needs of various categories of non-citizens. India which has porous border regions and boundaries with different neighboring countries witnesses the influx of illegal migrants to its territory. Without a clear cut definition, it becomes extremely difficult to determine the status of the entrant into the Indian Territory. For example, since Indian law does not define who is a refugee, the government armed with extra-ordinary powers can brand refugees and asylum seekers into illegal migrants. As a result, their fundamental rights of Article 14 and 21 could be violated.

Policy suggestions

Provision such as Section 3, subsection 2, clause (e) of the Foreigner’s Act (1946) and other provisions which provide powers to central government to detain any foreigner and compel them to ‘reside at a particular place’, with no specified time limit, requires a system of checks and balance to ensure that the fundamental rights of foreigners are not violated and there is no laxity in national security. Currently, there is no clear cut guideline for the treatment of foreigners in detention centers however the Supreme Court has asked the center for formulating appropriate guidelines for keeping foreign nationals in detention centers across the country. An NHRC mission report, 2018 suggested various recommendations like establishing Clear Legal Regime in Conformity with Article 21 and International Law, separation of foreigners under detention from those persons imprisoned under criminal law and mainly to ensure there is no indefinite detention of foreigners. Indefinite detention violates Article 21 of the Constitution, which also applies to foreigners. It is also settled law that the right to life and equality as fundamental rights are available to persons who are not citizens of India. This also has been reiterated by the Supreme Court of India in the case of the National Human Rights Commission v. State of Arunachal Pradesh and Louis De Raedt v. Union of India. The indefinite detention of detainees clearly amounts to a violation of international human rights standards.

The 175th law commission report on The Foreigner (Amendment) Bill, 2000 suggested proper definition for determining illegal immigrant and “inadmissible classes of persons” however silent on other forms of entrants. The Model National Law on Refugees a draft bill similarly suggested definition pertaining to asylum seeker and refugees, reaffirming the initiatives taken by Parliament under Article 37 and 253 of the Constitution of India. Definition plays a fundamental role in legal discourse. It is required to avoiding ambiguity in interpretation, and warranting the application of law to a case. Therefore there is a need for categorizing the status of various entrants into India. As this helps in understanding the special need of foreigners who enters into Indian Territory, in fear of persecution, natural calamities, war or in search of employment. Specific definition and categorization will ensure the appropriate applicability of fundamental rights to Non- citizens and will help to identify any threat of large influx of illegal migration into India.

This research article is penned by Amritesh Panda, a student of Symbiosis Law School Pune.

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