Foreign nationals have no constitutional right to reside, move freely within the country

Gauhati High Court Upholds Government's Right to Expel Declared Foreign Nationals The court reinforces that foreign nationals have no constitutional right to reside or work in India, emphasizing government authority over expulsion procedures.

In a significant ruling, the Gauhati High Court has reaffirmed the government’s absolute authority to expel declared foreign nationals from Indian territory. The judgment, delivered by Justices Kalyan Rai Surana and Susmita Phukan Khaund, emphasizes that foreign nationals, once declared as such by the Foreigners Tribunal, do not possess constitutional rights akin to Indian citizens, such as the right to reside, move freely, or engage in vocations within the country. The court clarified that the only right guaranteed to foreign nationals is the right to life, which does not include the right to choose one's residence or profession.

The case, titled Rejiya Khatun v. Union of India, involved the petitioner challenging the detention and potential expulsion of her husband, Majibar Rahman, who was declared a foreign national by the Foreigners Tribunal in Chirang, Assam. Despite his release after a two-year detention, Rahman was taken back into custody for verification and subsequent expulsion.

The court addressed the historical context of illegal migration into Assam and its implications on the region's demography and security. It referenced the Assam Accord and previous Supreme Court judgments, including Sarbananda Sonowal v. Union of India, highlighting the ongoing demographic changes due to illegal immigration, which have been equated to external aggression against Assam.

The judgment underscored the government's unfettered power to expel foreign nationals under the Foreigners Act, 1946, and the Immigration (Expulsion from Assam) Act, 1950. It clarified the distinction between "expulsion" and "deportation," noting that expulsion pertains to illegal migrants, whereas deportation applies to individuals whose lawful entry becomes illegal.

The court rejected the petitioner's claim of violation of Articles 21, 22, and 39A of the Constitution, affirming that the procedural safeguards under criminal law do not extend to declared foreign nationals awaiting expulsion. The court maintained that expulsion of such individuals is within the government's discretion and does not necessitate judicial intervention.

This ruling is poised to have far-reaching implications for handling illegal immigrants in Assam, reinforcing the government's authority and addressing longstanding concerns about demographic changes in the region.

Bottom Line:

Declared foreign nationals have no constitutional right to reside, move freely within the country, or carry out any vocation of their choice; only the right to life is guaranteed. Expulsion of such individuals is within the unfettered powers of the government.

Statutory provision(s): Constitution of India, Articles 14, 16, 21, 22, 39A; Foreigners Act, 1946; Foreigners Tribunal (Tribunals) Order, 1964; Immigration (Expulsion from Assam) Act, 1950; Code of Criminal Procedure; Bharatiya Nagarik Suraksha Sanhita, 2023.

Rejiya Khatun v. Union of India, (Gauhati)(DB) : Law Finder Doc Id # 2805220