AMITY LAW SCHOOL

AMITY UNIVERSITY UTTAR PRADESH

CONSTITUTIONAL LAW OF INDIA

PROJECT REPORT ON
CITIZENSHIP AND RIGHT TO RESIDE AND SETTLE IN INDIA

SUBMITTED IN PARTIAL FULFILMENT OF

B.A.LLB SECTION C (FOURTH SEMESTER)

SUBMITTED TO: SUBMITTED BY

DR KRITI PARASHAR MANISH

ANANYA
SHARMA
ARYAN MALIK
 INTRODUCTION

The right to reside and settle in any part of India's territory is enshrined in the Indian
Constitution under Articles 19(1)(e) and 19(1)(d), which guarantee freedom of movement and
the right to reside and settle in any part of India.

This fundamental right applies to all Indian citizens as well as persons of Indian origin who
have acquired citizenship of another country but retained their Indian citizenship or who have
registered as Overseas Citizens of India (OCI). It guarantees that every Indian citizen,
regardless of caste, religion, gender, or place of birth, has the right to move freely throughout
the country and to live and work in any part of India.
The right to reside and settle in any part of India is a fundamental right, and any law or
practice that seeks to limit this right is subject to legal scrutiny. This right has been critical in
promoting national integration and ensuring that every Indian citizen has an equal
opportunity to participate in the country's economic, social, and political life.

It is important to note, however, that this right is not absolute, and the government may
impose reasonable limitations on it in the interests of public order, morality, or health. For
example, due to security concerns, certain regions in India have been designated as "restricted
areas," and entry into such areas may require special permission or clearance from the
government.
Overall, the right to reside and settle in any part of India's territory is a fundamental right that
is necessary for promoting the nation's unity and integrity and ensuring equal opportunities
for all citizens.
 CITIZENSHIP AND RIGHT TO RESIDE AND SETTLE IN INDIA

FREEDOM OF MOVEMENT AND RESIDENCE: ARTS. 19(1)(d), (19)(1)(e) AND 19(5)

(a) ARTICLE 19(1)(D)

Article 19(1)(d) guarantees to every citizen the right to move freely throughout the territory of India.
Art. 19(1)(e) guarantees to a citizen the right to reside and settle in any part of India. According to
Art. 19(5), however, the State may impose reasonable restrictions on these rights by law in the
interests of general public or for the protection of the interests of any Scheduled Tribe.

These constitutional provisions guarantee to the Indian citizens the right to go or to reside wherever
they like within the Indian territory. A citizen can move freely from one State to another, or from
one place to another within a State. These rights underline the concept that India is one unit so far
as the citizens are concerned.

The rights of movement [ Art. 19(1)(d)] and residence [ Art. 19(1)(e)] go together in most cases for
when a person is asked to quit a particular place, both these rights are simultaneously affected.
Therefore, most of the cases fall both under Arts. 19(1)(d) and (e) simultaneously, and more or less
the same principles are followed in the matter of restrictions on any of these two rights, and hence
these are being discussed together.

(b) FOREIGNERS

Article 19(1)(e) applies only to citizens and not to foreigners. Accordingly, the Fundamental Right of
a foreigner is confined to Art. 21 guaranteeing his life and liberty.1 He cannot claim the right to
reside and settle in the country as guaranteed by Art. 19(1)(e). The Government of India thus has the
power to expel foreigners from India.2

(c) RESTRICTING MOVEMENT TO MAINTAIN PUBLIC ORDER

The Punjab Akalis threatened to hold a demonstration in Delhi on the occasion of the
inauguration of the Asian games. To frustrate such demonstrations, the Governments of
Haryana and Uttar Pradesh took stringent measures, such as barricading highways, resorting to
seizure and arrests, and intercepting the movement of Akalis across the border onto Delhi.

These steps were challenged through a writ petition in the Supreme Court. The Court laid down
some general norms as to how the police should behave in such a situation. The police is entitled
to impose reasonable restraints on the physical movement of the members of the public in
order to protect public property and avoid needless inconvenience to other citizens in their
lawful pursuits. But all such restraints on personal liberty have to be commensurate with the
object which furnishes their justification.

These should be minimal and ought not to exceed the constraints of the particular situation,
either in nature or in duration. Above all, these cannot be used as engines of oppression,
persecution and harassment. The sanctity of person and privacy has to be maintained at all costs
and ought not to be violated in the name of the maintenance of law and order. The rule of law

1
British I.S.N. Co. v. Jasjit Singh, AIR 1964 SC 1451: 1964 (2) SCJ 543.
2
Supra, Ch. XVIII.
 requires that no one is to be subjected to harsh, uncivilized or discriminatory treatment even
when the objective is the securing of the paramount exigencies of law and order.3

(d) WEARING HELMETS

A rule was made under the Motor Vehicles Act requiring the compulsory wearing of helmets
by a person driving a scooter or a motorcycle. The rule was challenged as infringing the free
movement of the driver of a two-wheeler guaranteed under Art. 19(1)(d), but the Court
refused to accept the argument.

The Court maintained that the rule has been framed for the benefit and welfare of, and safe
journey by, a person driving-wheeler-dealer a vehicle. The rule is made to prevent accidents
not to curtail freedom of movement. Even if it is assumed that the rule does put some
restriction on the freedom of movement, it is justifiable under Art. 19(5) as a reasonable
restriction in the interest of the general public.4

(e) EXTERNMENT

Articles 19(1)(d) and 19(1)(e) has been invoked frequently to challenge the validity of an
externment order served by the executive on a citizen requiring him to leave a State or a
district. Such an order prima facie curtails the freedoms guaranteed by these Articles, and,
therefore, the Courts are entitled to test whether the order and the law under which it has
been made, are reasonable within Art. 19(5).

An externment order was challenged on the ground that it was not a reasoned order. The
Supreme Court rejected the challenge pointing out that there is a certain brand of lawless
elements in society whom it is impossible to bring to book by established methods of judicial
trial because the legal evidence essential for conviction is impossible to obtain. For fear of
reprisals, witnesses are unwilling to depose in public against Page 1169 such characters. So,
in the externment order against such a person, and in the disposal of the appeal against that
order, the concerned authority is not bound to give reasons or to write a reasoned order.
The external is only entitled to be informed of the general nature of the material
allegations.5

The district magistrate of Delhi, empowered by the East Punjab Safety Act, 1949, served an
externment order on Khare asking him to immediately remove himself from Delhi and not to
return there for three months.

The Act in question empowered the State Government, or the district magistrate, to make
an order of externment on being satisfied that such an order was necessary to prevent a
person from acting in any manner prejudicial to public safety or maintenance of public
order. The satisfaction was 'final' and not open to judicial review. A district magistrate's
order could not remain in force for more than three months while that of the government
could last for an indefinite period.

3
Shamdasani v. Central Bank of India, AIR 1952 SC 59: 1952 SCR 391; Supra, 463
4
Dharam Dutt v. Union of India, (2004) 1 SCC 712: AIR 2004 SC 1295.
5
People's Union for Civil Liberties v. Union of India, (2004) 2 SCC 476 : AIR 2004 SC 1442.
In Prem Chand v. Union of India, 16 the Court has adopted a very strict approach on the question of
externment. The Court has characterized exterment of a person as "economic harakiri and psychic
distress". The Court has emphasized that externment provisions have to be read strictly and that any
"police apprehension is not enough. Some ground or other is not adequate. There must be a clear
and present danger based upon creditable material which makes the movements and acts of the
person in question alarming or dangerous or fraught with violence". Natural justice must be fairly
complied with.

In the instant case, the Supreme Court quashed the externment proceedings by the police against
the petitioner (under the Delhi Police Act, 1978) on the ground of misuse of power and laid down
the following guidelines for the use of such a power.6

"There must be a clear and present danger based upon credible material which makes the
movements and acts of the person in question alarming or dangerous or fraught with violence.
Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate
and dangerous that his mere presence in Delhi or any part thereof is hazardous to its community and
its safety.... Natural justice must be fairly complied with and vague allegations and secret hearings
are gross violations of Articles 14, 19 and 21 of the Constitution..."

(f) DEPORTATION

Article 19(1) (e) has also been used to challenge deportation of Indian citizens out of the
country and, in this area, the Supreme Court has limited the powers of the executive a great
deal. This judicial approach is illustrated by the following cases.

When the residence visa permit of a person who entered India on the basis of a valid permit
was cancelled, the Supreme Court held that having regard to the fact that he has entered the
country legally, the competent authority must inform him of the reasons for his proposed
deportation. The reasons must be sufficient to enable the petitioner to make effective
representation and only after considering the representation, the competent authority may pass
an appropriate order. The Court however observed that the procedure may be departed from
for compelling reasons.7

A Central law authorised the Central Government to direct the removal from India of any person
against whom a reasonable suspicion existed of having entered India without a permit, or on an
invalid permit, or committing a breach of a condition of the permit. The Supreme Court held the
provision invalid in its relation to the Indian citizens. While an Indian citizen guilty of serious
prejudicial acts like espionage or disloyalty to his country, may render himself liable to the
gravest penalty, it would be repugnant to all notions of democracy, and inconsistent with his
Fundamental Rights, to expel him from the country for any other reason. This amounts to
destroying his citizenship which could be done only by taking recourse to Art 11. 8

6
Anwar v. State of Jammu & Kashmir, AIR 1971 SC 337 : (1971) 3 SCC 104; see, infra, Ch. XXVI.
7
Gujarat Water Supply v. Unique Electro (Gujarat) (P), AIR 1989 SC 973 : (1989) 1 SCC 532.
8
0. AIR 1952 SC 196 : 1952 SCR 597.
 (g) POLICE SURVEILLANCE

Since the pre-independence days, there have been operations in some of the States, some
police regulations providing for police surveillance of activities of persons suspected of criminal
habits or tendencies. This includes secret picketing of the house, domiciliary visits at nights, and
shadowing the movements of the suspect. The purpose of police surveillance is prevention of
the commission of crimes by such persons.

The validity of such regulations with reference to Art. 19(1)(d) was first considered by the
Supreme Court in Kharak Singh v. State of Uttar Pradesh.9 The Court ruled by a majority that no
aspect of police surveillance fell within the scope of Art. 19(1)(d).

The purpose of secret picketing was only to identify the visitors to the suspect so that police
might have some idea of his activities and this did not affect his right of movement in any
material form.

Against the validity of shadowing of the suspect's movements, it was argued that if a person
suspected that his movements were being watched by the police, it would induce in him a
psychological inhibition against movement and this would infringe Art. 19(1)(d) which should be
interpreted as postulating freedom not only from physical, but even psychological, restraints on
a person's movement. Rejecting this argument which advocated too broad a view of the scope
of the safeguard guaranteed by Art. 19(1)(d), the Court ruled that Art. 19(1)(d) guarantees
freedom from physical, direct and tangible restraints; it has no reference to 'mere personal
sensitiveness', or 'the imponderable effect on the mind of a person which might guide his action
in the matter of his movement or locomotion'.

On the same view, domiciliary visits were also held to fall outside the scope of Art. 19(1)(d) as a
knock at the door, or rousing a man from his sleep, does not impede or prejudice his locomotion
in any manner.

(h) RIGHT TO PRIVACY

An interesting question considered by the Court in these cases is whether there is in India a
fundamental Right to privacy. In the Kharak Singh case,10 the Supreme Court ruled definitively
that the 'right to privacy' was not a guaranteed right in India. But in Govind, 11 the Court appears
to have accepted a limited Fundamental Right to privacy 'as an emanation' from Arts. 19(1)(a),
(d) and 21.

The right to privacy is not, however, absolute, and reasonable restrictions can be placed thereon
in public interest under Art. 19(5). The impugned police regulations were characterised as
making 'drastic inroads directly into the privacy' and 'indirectly into the Fundamental Rights,' of
the suspect and, therefore, they were given a restrictive operation as stated above.

A further discussion is held on the right to privacy later under Art. 21. 12

9
Dharam Dutt v. Union of India, (2004) 1 SCC 712 : AIR 2004 SC 1559.
10
M.R.F. Ltd. v. Inspector Kerala Govt., AIR 1999 SC 188, 191 : (1998) 8 SCC 227.
11
Om Kumar v. Union of India, AIR 2000 SC 3689. Also see, infra.
12
8. See, Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118 : 1950 SCR 188; State of Madras v. V.S.
Rao, AIR 1952 SC 196 : 1952 SCR 597; Om Kumar v. Union of India, JT 2000 (Suppl. 3) SC 92 : AIR 2000 3689.
(i) ADMINISTRATIVE DISCRETION

A review of the cases concerning Arts. 19(1)(c), (d) and (e) will reveal that there appears to
be a difference in judicial attitude towards the permissible limits of administrative discretion
to curtail the Fundamental Rights of 'association', 'movement' or 'residence'. The right of
association is better protected for the administrative authority cannot be empowered to
restrict the right finally in its discretion; some kind of judicial scrutiny should be provided
for.29 In other cases, judicial review may not be necessary over administrative discretion.