Legal Perspective on the Restriction of Residency Rights: Compliance with Article 19 1 (e) in Modern India

Topic 9: Article 19 (1) (e) of the Constitution of India

Freedom of residence is a fundamental right guaranteed under Article 19 (1)(e) of the Indian Constitution. According to this Article, every citizen of India has the right to reside and settle throughout the territory of India.

India is a diverse country with many cultures and religions, and to protect the culture, some reasonable restrictions are provided to protect and safeguard the culture and ethnicity of tribal people. Article 19 (5) provides for reasonable restrictions to protect the interest of the public at large and to protect their health and culture.

The prime example of this was the restrictions imposed during Covid-19 by the Government. The general public was restricted from moving from one state to another during this period for safety, and as a precautionary measure, to protect the health of the citizens.

Citizens are banned from entering or even visiting the Northern Sentinel Island of Andaman and Nicobar by the Government of India. The tribal population of these islands is isolated and can’t communicate with the rest of the world, as they have not learned the languages that are spoken by us, making it impossible to communicate with them. Their bodies have not developed the immunity to fight viruses like our bodies and may not survive after coming into contact with 21st-century humans. Therefore, the restrictions imposed on us are for their safety and to protect their culture and health.

Sometimes the Government can also impose restrictions on some places to provide security to diplomats and foreign consulates, and to provide security at important places like Parliament, Assembly, airport & Supreme Court, etc., where residing and entering within the buffer zone limits are restricted for unauthorized persons. Residing near a National Monument like India Gate or within a regulated area is also restricted, and the construction of private bodies is illegal. Any person who wants to construct private property within the regulated areas of centrally protected monuments has to take prior NOC from CAs of the National Monument Authority of India.

The Indian Constitution previously granted special provisions to the state of Jammu and Kashmir through Article 370, including exceptions to Article 19 (1) (e) to protect its distinct rights and culture. This allowed the state to impose restrictions on non-residents. However, on August 6, 2019, the Indian government revoked Article 370, ending Jammu and Kashmir’s special status and autonomy, which had been in place to safeguard its unique identity. In Mr. Louis De Raedt & Ors vs Union Of India And Ors, 1991 AIR 1886, it was said that “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.”

Every right comes with an exception; no right can be an absolute right but is subject to reasonable restrictions which are provided in exception clauses. The restrictions are determined by the court of law and imply the limitations alike; the freedom of residence is also subjected to the reasonable restriction defined under Article 19 (1) (e) of the Indian Constitution.

This article was written by Mr. Affan Rizwan, Attorney at Vis Legis Law Practice, Advocates .