As we all know, all the citizens of India have been given the right to residence where they can move freely in any part of the country and settle in any state. Article 19 (1)(d) guarantees to every citizen the right to move freely throughout the territory of India and Article 19 (1)(e) guarantees the right to reside and settle in any part of India. Usually we study both of these rights together. But we know that there are some states in India where there are some reasonable restrictions for the residence and settlement such as in the Northeast States.
If you want to go to Arunachal Pradesh, you have to take permission. What’s the reason for this? Currently in this covid times, different states have different requirements. For example, some states like Sikkim made it mandatory that any person who hasn’t been injected 2 doses of vaccination, cannot enter into it. In some states there is only a requirement of RTPCR but in some states there is not any restriction. So how we can understand this in the context of Article 19(1)(d) and 19(1)(e). First of all, I want to throw some light on article 19(5) with says that state may impose reasonable restrictions on these rights in the interest of general public and for the protection of the interest of Scheduled Tribes. In many hilly villages resides a small population. If people from other parts of the country go there freely, this gathering may destroy the Environmental balance. Free entrance into such areas can also cause natural calamities. So if the government allows limited number of people to visit that particular area, it comes under the perview of first ground of article 19(5) that is the interest of general public. The second ground, which is mentioned in Article 19(5) is to protect the interest of scheduled tribes. There are some states where mainly reside STs. They have their own culture and they have a fear that if people Visit their areas without restrictions and reside there, this can affect their culture in a negative way. Now let’s understand two or three things here- the 1st one is Externment Order. It means that a govt. can pass an order to expel any person from any state or district. You have heard the police saying that there is a person who has criminal history and he has committed many crimes and we think that public order may be disturbed by this person in a particular district. So can the police expel that person for limited period from that district? To make it clear I want to share two judgements with you all. 1st judgement came from Hari Khemu Gawain v. The Deputy Commissioner of Police 1956 AIR 559. In Bombay Police Act, the Bombay police have the right to expel a person who may disturb the Public Order or may commit any offence in Greater Bombay. When this matter went to court and Bombay Police Act was challenged, the court said that it is valid because in the Act there were several procedural safeguards. The commissioner who is expelling a person has to give it in a written statement as on what ground he is expelling that person. But after some span of time,position changed. Let’s look at the 2nd judgement that came from Prem Chand v. UOI AIR 1981. The Court said that only by apprehension the police cannot expel anyone from any district. The police have to prove that there is some present and clear danger from that person. Now there is another word, Deportation. It means sending a person out of the country. Only two types of people can be deported, Foreigners and Indian Citizens. There is an important judgement regarding this, Hasan Ali Raihany v. UOI AIR 1972. In this the court said that if any person comes to India with a valid permit, the govt. has not any right to expel that person illogically. The govt. has to prove on what ground they are cancelling the permit. Now, the court said that if any Indian does any heinous crime or anything against the law, in that case also, he/she cannot be expelled from India. You can punish him/her, but cannot expel them. The court said that expelling any Indian from the country is against Article 11 which is about citizenship.
Right to Residence and Movemnet by Remiya Rani at Lexcliq
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