General Studies IIConstitution

Fundamental Rights of Foreigners


The Union government has urged the Supreme Court to help lay down a law with a “long–lasting” implication for the country on the subject of Foreigners’ Right to approach local courts for relief after violating their visa conditions.

What are Fundamental Rights (FRs)?

There are certain rights which are fundamental to the all-round development of an individual. These rights are recognized by the state and guaranteed by the Constitution itself. These rights are termed as Fundamental Rights (FRs). Promoting the ideal of political democracy, Fundamental Rights prevent arbitrary rule of the state. These rights are called fundamental for two reasons:

  • Guaranteed by the Constitution, which is the fundamental law of the land
  • Extremely necessary for the holistic development of the individuals

Fundamental Rights are included in Part III of the Constitution from Articles 12 to 35Constitution of USA was a source of inspiration for the framers of the Constitution of India. Part of Fundamental Rights of the Constitution is described as the Magna Carta of India.

Fundamental Rights: Citizen vs Non-Citizen

India was a signatory to the Universal Declaration of Human Rights, therefore great precaution was taken so that Fundamental Rights mentioned in Part 3 of Indian Constitution is concurrent with the provisions of the UN Declaration of Human Rights.

While most Fundamental Rights are available for citizens and foreigners alike (Eg: Article 21), certain rights are exclusive only for Indian Citizens (Eg: Article 19).

Fundamental rights available to both citizens and foreigners except enemy aliens  Fundamental Rights Available Only to Citizens of India  
Article 14 – Equality before the law and equal protection of laws.
Article 20 – Protection in respect of conviction for offences.
Article 21 – Protection of life and personal liberty.
Article 21A – Right to elementary education.
Article 22 – 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 – 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 attending religious instruction or worship in certain educational institutions.  
Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
Article 16 – Equality of opportunity in matters of public employment.
Article 19 – Protection of six rights related to freedom – (a) of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (f) to practice any profession, or to carry on any occupation, trade or business.
Article 29 – Protection of language, script and culture of minorities.
Article 30 – Right of minorities to establish and administer educational institutions.  

  • Enemy aliens are the citizens of a state which is at war with India. They enjoy less rights than friendly aliens.
  • Friendly aliens are the citizens of those countries that have cordial relations with India.

You should be an Indian Citizen to…

  • Vote in Elections.
  • Contest in Elections (connected with Article 16)
  • Hold any constitutional posts of the country, like The President, Vice-President, Governor, ministers, judges etc. (connected with Article 16)
  • Get any benefits from the government given only to the citizens of India.

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 have 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 have 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 an 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 as illegal migrants. As a result, the fundamental rights of Article 14 and 21 could be violated.

Source: The Hindu

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