Delhi HC on Foreigners’ Right to Enter India

GS-II – Polity & Governance | Fundamental Rights | Foreigners in India

Why in News?

• Delhi High Court: Possession of a valid visa does not confer upon the foreign national with an indefeasible right or legal right to enter India.
• Case: The bench, led by Justice Amit Mahajan, was hearing a petition of a Turkmenistan citizen who said she was prevented from entering India at Indira Gandhi International Airport.
• Background: She travelled to India on March 25 in the same flight as her husband, who was allowed entry into India while she had to go back to Turkmenistan the very same day.
• The petition was dismissed by the Court on 30 September, stating that there is no automatic or judicial right of entry to a foreign citizen in India.

What Did the Court Rule?

·         No Rule of Law Rights to Enter : According to a landmark decision, it ruled that “the right of a foreign national to seek entry into India is neither inherent in nor has any legal basis”.

·         Sovereign Functions : The power to issue a visa, deny entry and grant immigration clearance are sovereign functions of the State involving:

• National security.
• Foreign policy.
• Administrative discretion.

·         Difference Between Visa and Admission :Court made clear the difference between:

• Fulfilling visa requirements.
• Being allowed in the country.

·         No Absolute Right Due to Holding of a Visa : The legal regime does not recognize possession of a visa as creating an absolute, unqualified right to enter India.

·         Article 14 Argument : It does not follow simply due to the fact that petitioner’s husband was granted entry, this will not mean both were at par in all respect.

• Adverse Inputs: The adverse inputs received by the authorities had stated that the “adverse inputs” were about the petitioner only.

·         Article 226 : Since the petitioner failed to demonstrate violation of legally enforceable right, there was no ground for issuance of Writ under Article 226.

·         Final Decision: The petition was dismissed.

What is the Law Behind This?

·         Immigration and Foreigners Act, 2025: The primary legislation in this judgement is the Immigration and Foreigners Act, 2025, which now regulates the laws applicable to foreigners in India.

·         Section 3 : Any Alien requiring to arrive in India should have:

• A passport or travel document that is valid.
• A valid visa.
• Grounds for Inadmissibility: Where a foreigner is inadmissible to enter or stay in India on one or more of the following grounds:
  • Threat to national security.
  • Sovereignty and integrity of India.
  • Relations with a foreign State.
  • Public health.
  • Such other grounds.

·         Section 7 : Prohibiting, regulating or restricting:

• Entry of foreigners into India.
• Departure of foreigners from India.
• The presence of foreigners, or continuing expansion.
• Immigration Officer: Inspection of a passport, travel document and visa at the point of entry authorises an Immigration Officer to demand such information as is necessary or expedient.

·         Legal Position : The law does not treat possession of a visa as an absolute and unconditional right to enter India.

Supreme Court Decisions Relied Upon

Hans Muller v. Superintendent, Presidency Jail (1955)

• The Supreme Court ruled that the Foreigners Act, 1946 provided for excessive discretion upon the Central Government with respect to foreigners, including expulsion.

Louis De Raedt v. Union of India (1991)

• The apex court ruled that the only fundamental right available to a foreigner is the protection of life and personal liberty under Article 21.
• Article 19(1)(e) – the right to reside and settle in any part of India is a right conferred only upon citizens.

Key Takeaway

• Merely because a visa is granted, does not create an absolute and unqualified right of entry into India.
• Foreigners are still bound by immigration law, national security, foreign policy & administrative discretion.
• If a foreign national is unable to demonstrate any enforceable right to enter India, there is no question of issuing a writ directing appropriate authorities concern to admit the individual.

UPSC Mains Practice Questions

Q. Discuss the constitutional position of foreigners’ rights under Articles 14 and 21 in India.