Visiting India often seems alluring to foreigners, whether for work, art, culture, tourism, education or business. So, the Consitution of India provides certain rights to foreigners.
The Constitution of India is the world’s longest-written Constitution, consisting of over 470 articles guaranteeing numerous rights to its citizens. However, these rights extend beyond citizens. As a democratic nation, India also preserves certain fundamental rights available to foreigners in India. These rights protect their dignity, liberty, and equality.
Section 2 of the 1939 Registration of Foreigners Act defines a “foreigner” as a person who is not an Indian citizen.
What are Fundamental Rights?
Certain rights essential for an individual’s holistic development are fundamental rights. Part III of the Indian Constitution, also known as the Magna Carta of India, provides for Fundamental Rights in Articles 12 to 35.
The Constitution guarantees the fundamental rights, and the state protects them. These rights ensure political democracy and prevent the government from exercising arbitrary rule.
There are two types of fundamental rights. Some legal rights are only limited to citizens, such as rights provided in Article 15 and the basic rights guaranteed to all individuals, regardless of their citizenship status. As a signatory to the Universal Declaration of Human Rights, India has played a vital role in promoting its ideals. To ensure that the well-being and freedom of foreigners aren’t affected, the Constitution framers also focussed on making some fundamental rights available to foreigners in India.
Fundamental Rights Available to Foreigners in India
The fundamental rights available to foreigners in India are more comprehensive in Indian Constitution than in any other country’s Constitution. The Constitution ensures these without discriminating against any individual.
Right to Equality Before the Law and Equal Protection of Laws
Article 14 – The Constitution ensures that every person has the right to equality before the law or the equal protection of laws within the territory of India. Foreigners can also enforce this right while on Indian soil.
Right of Protection Regarding Conviction for Offences
Article 20: Just like its citizens, fundamental rights protect foreigners from getting convicted for crimes retrospectively and from double jeopardy. The right further prevents them from self-incrimination; thus, authorities cannot force them to witness against themselves.
Right of Protection of Life and Personal Liberty
Article 21: It is a fundamental right, available equally to every person, be it any citizen or foreigner, ensuring their dignity and freedom within the Indian territory. So, Article 21 consists of the following:
- Right to Life
- Right to Personal Liberty
Both fundamental rights are the most crucial rights guaranteed by the Indian Constitution.
Right to Primary Education
Article 21(A): Foreign nationals have the right to primary education, ensuring access to education regardless of nationality. Regardless of citizenship, the state shall provide free and compulsory education to all children aged six to fourteen years residing within the territory of India and in a manner determined in the state by law.
Right to Protection Against Arrest and Detention in Specific Cases
Article 22: In certain circumstances, foreigners are protected against arbitrary arrest and imprisonment, protecting them against unlawful detention. However, enemy aliens (persons from a country at war with India) don’t have this right to ensure public safety and prevent national security.
Right to Prevention from Human Trafficking and Forced Labour
Article 23: Both citizens and foreigners are protected against human trafficking and forced labour, ensuring the protection of their freedom and human dignity.
Right to Prohibition of Child Labour in Factories
Article 24: Like citizens, children of foreign nationals below the age of fourteen shall not be employed in factories or hazardous work. Thus this fundamental right safeguards the rights and well-being of children.
Right to Religious Freedom
The Constitution of India adopts a secular model. Articles 25 – 28 provide that every person residing within the Indian territory has the right to choose and the freedom to practice their religion. However, these rights are subject to public order, morality, health, and other provisions.
Article 25: Foreigners have the freedom of conscience and the right to practice, profess, and propagate their religion freely.
Article 26: Foreigners are free to manage their religious affairs, permitting them to exercise freedom in matters related to their religion.
Article 27: Foreigners cannot get forced to pay taxes to promote or maintain any particular religion or religious entity.
Article 28: This fundamental right provides freedom to attend religious instructions or worship in any educational institutions.
Features of Foreigner Rights
- Some fundamental rights are solely available to citizens, whilst others are accessible to all individuals, whether citizens, legal persons such as corporations or firms, or foreigners.
- The fundamental rights of foreigners are subject to reasonable restrictions to public order, security, or the rights of others. Thus, these rights are conditional.
- The rights are legally enforceable.
- The Supreme Court of India is the guardian of the Indian Constitution and plays a crucial role in upholding and defending fundamental rights, including those of foreigners.
- Under ordinary circumstances, most rights remain enforceable. But, during times of National emergency, these rights can get suspended only except those protected by Articles 20 and 21.
Can a Foreigner file a Writ petition for Fundamental Rights?
The courts must protect and uphold the fundamental rights of citizens and foreigners. In case of violation of fundamental rights, the person can file a writ petition in the Supreme Court and the High Court under Article 32 and Article 226.
Therefore, upon the violation of fundamental rights available to foreigners in India, foreigners can directly file a writ petition.
Fundamental Rights Not Available to Foreigners
An ordinary citizen can enjoy a comprehensive range of fundamental rights. However, there are certain limitations regarding rights available to foreigners. Statutes like the Registration of Foreigner Rules, 1992, and Foreigners Act 1946 govern foreigners in India. The laws can limit their stay, movement and conduct within the Indian territory subject to national security, immigration and other concerns.
Fundamental rights available only to citizens and not to foreigners are:
- Article 15: Citizens of India, exclusively, have the right to protection against discrimination based on religion, race, caste, sex or place of birth.
- Article 16: The right to equal opportunities in public employment is solely for the Indians.
- Article 19: The right to protection of freedom of speech and expression, assembly, association, movement, residence and profession.
- Article 29: Foreigners are not entitled to the right to protection of the language, script and culture of minorities.
- Article 30: The right of minorities to establish and administer educational institutions is limited to the citizens.
Like most independent nations, India also follows the principle of natural justice. It provides certain fundamental rights to foreigners to ensure fair treatment and a supportive environment for foreign nationals living, working, or visiting the country. Though legally enforceable, these rights are conditional.