New Delhi [India], September 29 : The Delhi High Court has made it clear that humanitarian considerations cannot be invoked to bypass the statutory framework governing the entry and stay of foreign nationals in India.
Dismissing a petition filed by an Afghan national lodged at the Lampur Detention Centre, Justice Sanjeev Narula observed that while courts can intervene to prevent arbitrary detention, they cannot create a right to reside in India where such a right does not exist under law.
The petitioner, convicted under Section 14 of the Foreigners Act, 1946, had sought release from custody by relying on a refugee certificate issued by the United Nations High Commissioner for Refugees (UNHCR).
The Court, however, strongly noted that India is not a signatory to the 1951 Refugee Convention or the 1967 Protocol, and UNHCR certification does not confer any enforceable legal status under Indian municipal law.
"The deportation of a foreign national is within the exclusive domain of the executive, subject to compliance with law and fair procedure," the Court said, citing the Supreme Court's rulings in Hans Muller of Nurenburg v. Superintendent, Presidency Jail and Louis De Raedt v. Union of India, both of which affirmed that foreigners do not enjoy a fundamental right to reside or settle in India.
Justice Narula further emphasised that judicial review in such matters is confined to ensuring legality and fairness in deportation proceedings, rather than conferring residence rights. "Courts may intervene to prevent arbitrary or unlawful detention, but not to recognise or create a right to reside in India where none exists in law," the order stated.
The Court also addressed the petitioner's plea for relief on humanitarian grounds, acknowledging the hardships that deportation may entail but holding that "such considerations cannot override the statutory framework." The order stressed that without a valid visa or recognition by the Union Government, no legal entitlement to stay arises.
Dismissing the petition, the High Court declined to issue a writ of mandamus for release, instead leaving it to the authorities to conclude deportation proceedings in accordance with law, while ensuring due regard to the petitioner's medical and humanitarian needs during custody.