The prevailing situation all over the world presently is one of concern due to the COVID-19 pandemic. Some countries are already recovering from a first wave of the coronavirus, however, many countries like the USA and India still report significant number of cases every day. In fact, the USA has already reported almost 6 million cases with 178,000 people losing their lives to the deadly virus, giving the county the top spot for having the maximum number of cases as well as deaths from the novel coronavirus. With this background, a very recent judgement by the Kerala High Court throws light on the fundamental rights available to a foreign national in India.
JOHNNY PAUL PIERCE VS. THE UNION OF INDIA WP(C).NO.13263 OF 2020(G)
Johnny Paul Pierce, a 74 years old US citizen, sought extension of stay in India, citing the reason that he felt safer in Kerala than he would feel in the USA. Pierce had arrived in Kerala on 26.02.2020. As per the visa norms, although his visa was valid till January 26, 2025, he was allowed to stay in India only upto 180 days on a single visit.
However, due to the nationwide lockdown imposed in the wake of COVID-19 pandemic, Pierce was stuck in Kerala. His representation sent to the Commissioner of Immigration and Foreigners Registration Officer, seeking permission to extend his stay on the ground that he was a senior citizen and the worsening COVID-19 situation in the USA, did not garner a positive response.
He approached the hon'ble High Court of Kerala by way of a writ petition under Article 226 of the Constitution of India, submitting that since his visa is valid till 2025, there should not be any impediment in his stay beyond 180 days in India at a stretch.1
However, the single bench comprising of Justice C S Dias, which considered the writ petition, observed on the basis of the Supreme Court precedents that a foreign national cannot claim the protection of Article 19(1)(e) of the Constitution of India i.e., a foreign national does not have the fundamental right to reside and settle in India.
Secondly, the court also reiterated to the Petitioner, based on established precedents of the Supreme Court, that his plea to permit him to stay back in India cannot be accepted, as it falls within the purview of the guidelines and the discretion of the Government of India. The petitioner, who came to India on a tourist visa, was well aware of the conditions in the visa before he left his country. Thus, it is too late in the day for him to raise a grievance on the visa conditions.2 The hon'ble High Court further clarified that the grant and extension of visas to foreign nationals fall exclusively within the domain of the Government of India, to ensure the sovereignty and the national security of the country, which stands at the highest pedestal, and thus, judicial review in these matters is minimal.
However, having regard to the pandemic situation and the suspension of international flights, the court directed the Foreigner's Registration Officer to consider the petitioner's representation within a period of two weeks, strictly in accordance with the applicable guidelines and policies.
ARTICLE 19(1)(E) OF THE CONSTITUTION OF INDIA AND THE POWER OF THE GOVERNMENT OF INDIA TO EXPEL FOREIGNERS
The hon'ble High Court of Kerala based its decisions on a few well-established precedents of the hon'ble Supreme Court. We shall take a look at them to understand the nature of the fundamental rights available to foreigners.
HANS MULLER OF NURENBURG V. SUPERINTENDENT, PRESIDENCY JAIL, CALCUTTA [AIR 1955 SC 367]
The petitioner Hans Muller, a West German , was arrested by the Calcutta Police on 18th September 1954, and was placed under preventive detention. The order was made by the West Bengal Government under section 3(1) of the Preventive Detention Act of 1950 (Act IV of 1950) on the ground that his detention was "with a view to making arrangements for his expulsion from India".
After certain events, the West German Government wrote to the West Bengal Government saying that a warrant of arrest was issued against the petitioner in West Germany in connection with a number of frauds and that legal proceedings in connection with those warrants were pending. The Consul also said that he had received information that similar charges had been made against the petitioner in Lebanon and in Egypt and stated that the Government of the Federal Republic of Germany will apply for Muller's extradition and requested the Government of West Bengal to issue a provisional warrant of arrest which ensured Muller's detention up to the date of his extradition to Germany. On receiving the said letter, the Secretary of the Government of West Bengal made a noting that there would be no objection from the West Bengal Government for keeping Muller in detention till the date of his expatriation.
The petitioner challenged the validity of section 3(1)(b) of the Preventive Detention Act of 1950 on the ground that it was ultra vires the constitution as it contravened Articles 14, 21 and 22 of the Constitution of India.
While dismissing the petition, the hon'ble Supreme Court of India held that the power of the Government of India to expel foreigners is absolute and unlimited and there is no provision in the Constitution fettering this discretion.
"39. The Foreigners Act confers the power to expel foreigners from India. It vests the Central Government with absolute and unfettered discretion and, as there is no provision fettering this discretion in the Constitution, an unrestricted right to expel remains."
LOUIS DE RAEDT V. UNION OF INDIA AND ORS AIR1991 SC 1886
Louis De Raedt had challenged the order whereby his prayer for further extension of the period of his stay in India was rejected and he was asked to leave the country by the 31st July 1987. It was urged that Raedt had been staying in India continuously since 1937 except on two occasions when he went to Belgium for short periods in 1966 and 1973. It was contended that by virtue of the provisions of Article 5(c) of the Constitution of India, Raedt became a citizen of India on 26.11.1949, and he could not, therefore, be expelled on the assumption that he is a foreigner.
While dismissing the petition of Raedt, the hon'ble Supreme Court of India stated that the argument that the petitioner had been staying in this country for more than a decade before the commencement of the Constitution and therefore, he must be deemed to have acquired his domicile in this country and consequently the Indian citizenship, could not be accepted. For the acquisition of a domicile of choice, it must be shown that the person concerned had a certain state of mind, the animus manendi. If he claims that he acquired a new domicile at a particular time, he must prove that he had formed the intention of making his permanent home in the country of residence and of continuing to reside there permanently. Residence alone, unaccompanied by this state of mind, is insufficient.
The court further stated that a foreign national does not have the right to reside and settle in India as mentioned under Article 19(1)(e) of the Constitution of India. The relevant portion of the judgement is extracted herein below:
"13. The next point taken on behalf of the petitioners, that the foreigners also enjoy some fundamental right under the Constitution of this country, is also of not much help to them. The fundamental right of the foreigner is confined to Article 21 for life and liberty and does not include the right to reside and settle in this country, as mentioned in Article 19(1)(e), which is applicable only to the citizens of this country."
STATE OF ARUNACHAL PRADESH V. KHUDIRAM CHAKMA [(1994) SUPP. (1) SCC 615]
The hon'ble Supreme Court, while dealing with the rights of the Chakma refugees, widely known as the Chakma refugee case restrained the forcible expulsion of Chakma refugees from the state of Arunachal Pradesh. However, the court made a very important distinction between the fundamental rights available to the Indian citizens and to the foreigners. The Supreme Court held that Article 19 (1) (d) and (e) are unavailable to foreigner nationals because these rights are conferred only on the citizens. The machinery of Article 14 also cannot be invoked by foreign nationals. Rights under Articles 19(1) (d) and (e) are expressly withheld to foreigner nationals.
Therefore, the recent judgement in Johnny Paul Pierce's case once again has clarified the rights available to foreign nationals in India. Right against discrimination on the grounds of religion, race, caste, sex or place of birth (Article 15); right to equality of opportunity in matter of public employment (Article 16); freedom of speech and expression, assembly, association, movement, residence and profession (Article 19); cultural and educational rights (Article 29 and 30); and right to vote and become member of the union and state legislatures are available exclusively to citizens of India and foreign nationals cannot benefit from the same. Protection of Article 14 and 21 is available, however, it cannot include any of the fundamental rights which are only accorded to the citizens of India.
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