Share :
Introduction
According to the Delhi High Court, foreigners’ fundamental rights are restricted to the protection of their life and liberty under Article 21 of the Indian Constitution, and they cannot claim the right to live and settle in India.
“We may also note that a foreign national cannot claim that he has the right to reside and settle in India in terms of Article 19 (1) (e) of the Constitution of India,” said a division bench of Justice Suresh Kumar Kait and Justice Manoj Jain.
“Fundamental right of any such foreigner or suspected foreigner is limited to the one declared under Article 21 of Constitution of India, that is, fundamental right of life and liberty and there is nothing which may suggest that his liberty has been curtailed in an illegal or unlawful manner,” the court said.
FACTS OF THE CASE
In Kinadhan Chakma v. Union of India, the petitioner, who happened to be Azal Chakma’s maternal uncle, asserted that Azal was born, raised, and married in India by his mother to Uttam Kumar, a Bangladeshi immigrant. Azal’s schooling was received in India, and he had an Indian passport, an AADHAR card, a PAN card, a driving licence issued by Indian authorities, and a business in Kolkata.
The petitioner further argued that on October 13, 2022, the respondent unlawfully detained his nephew, who was apprehended at Indira Gandhi International Airport in New Delhi, while he was boarding a trip to Dhaka. It was alleged that he had been in continuous unlawful custody, that he had never been before a court or any authority, and that his incarceration had violated the Citizenship Act of 1955 in its entirety.
Respondent argued, on the other hand, that Azal was detained at the airport during immigration clearance when he tried to leave for Dhaka using an Indian passport that had been obtained fraudulently. The argument went on to say that following an investigation, it was discovered that he had been visiting India until 2016 on several Indian visas using passports issued by Bangladesh. Lastly, he had left India on a Bangladeshi passport on June 17, 2016, leaving Kolkata, and there was no evidence of how he had then entered India covertly. It was probable that he procured fictitious documents and entered India illegally following his previous visit.
Respondent further stated that on June 21, 2023, Indian authorities withdrew his passport. Azal’s status as a citizen of Bangladesh and a national of Bangladesh has been established on multiple occasions. Under Section 3(2)(e) of the Foreigners Act, 1946 read in conjunction with Section 11(2) of the Foreigners Order, 1948, his movements had been restricted. Additionally, it was said that the High Commission of Bangladesh had already provided him with travel paperwork for his return and that he would be deported as soon as the Respondent received a confirmed air ticket from Bangladesh’s Embassy.
COURT’S ASSESSMENT
According to the Court’s opinion, Azal was discovered to be travelling with an Indian passport that had been obtained fraudulently. According to the documents Respondent provided, he held a Bangladesh passport, travelled to India on several occasions, and declared himself to be a citizen of Bangladesh at the time of his visa application. The petitioner failed to provide information about how and when he entered India after travelling to Dhaka, according to the court, and he also failed to respond to the aforementioned documents.
Furthermore, it was stated that an application for illegal detention under Section 97 of the CrPC was filed with the Magisterial Court. On July 17, 2023, the Additional Chief Metropolitan Magistrate-II of the Patiala House Courts in New Delhi decided to apply, noting that the alleged confinement did not constitute an offence.
The Court decided that Azal had to take responsibility for his suffering since he did not provide an explanation for his return to India after leaving the country using a Bangladeshi passport and had his travels restricted to prevent his deportation to Bangladesh. In response to the petitioner’s argument that Azal could not be deported until his Indian citizenship was revoked, the court determined that as he never appeared to have obtained citizenship, there was no need to terminate it.
RIGHTS OF FOREIGN NATIONALS
In Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta: AIR 1955 SC 367 wherein the Supreme Court has observed that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering such discretion. The fundamental Right of any such foreigner or suspected foreigner is limited to the one declared under Article 21 of the Constitution of India i.e. Fundamental Right to life and liberty and there is nothing which may suggest that his liberty has been curtailed illegally or unlawfully.
CONCLUSION
When the Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain, heard a writ petition filed by the petitioner under Article 226 of the Constitution read with Section 482 of the Criminal Procedure Code, 1973 to issue an appropriate direction and orders to respondent for the illegal detention and custody of the petitioner’s nephew, they dismissed the appeal and held that the Government of India had the absolute and unlimited authority to expel foreigners, that the foreigners’ fundamental rights were restricted to those granted under Article 21 of the Constitution, and that the actions of the authorities were legal.
For more information or queries, please email us at
[email protected]
